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Empagran, S.A., v. F. Hoffman-La Roche Ltd.

August 1, 2006

EMPAGRAN, S.A., ET AL., PLAINTIFFS,
v.
F. HOFFMAN-LA ROCHE LTD., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas F. Hogan Chief Judge

MEMORANDUM OPINION

Pending before the Court is a Motion for Relief from Final Judgment filed by the foreign Plaintiffs in this case, Empagran, S.A., Winddridge Pig Farm, Nutricion Animal, S.A., and Concern Stirol, on behalf of unidentified direct purchasers of vitamins from the European Union (also referred to as the "EU"). Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, the Plaintiffs seek relief from the Court's April 26, 2002, Final Judgment dismissing their Amended Class Action Complaint and thereby refusing to exercise supplemental jurisdiction over claims premised on foreign law and customary international law that were asserted against the Defendants, F. Hoffman-LaRoche, Ltd., Hoffmann-LaRoche, Inc., BASF A.G., BASF Corporation, Aventis S.A., Rhone-Poulenc Animal Nutrition Inc., Hoechst Marion Rousell S.A., Takeda Chemical Industries, Ltd., Takeda Vitamin & Food USA, Inc., Daiichi Pharmaceuticals Co., Ltd., Eisai Co., Ltd., Eisai U.S.A., Inc., Akzo Nobel Chemicals B.V., Alusuisse Lonza Group Ltd., Lonza A.G., Lonza Inc., Bioproducts, Inc., Degussa-Huls AG, Degussa Huls Corporation, DuCoa, L.P., DCV, Inc., Mitsui & Co., Ltd., Nepera Inc., Sumitomo Chemical Co., Ltd., Tanabe Seiyaku Co. Ltd., UCB S.A., Chinook Group Ltd., and Cope Investments Limited.

Pls.' Mot. for Relief from Final J. 1 [hereinafter "Pls.' Mot. ___"]. The Plaintiffs argue that "important developments have occurred in the EU that give cause for this Court to reconsider its refusal to exercise supplemental jurisdiction over the foreign law claims of EU Plaintiffs in this case." Pls.' Mem. Supp. Mot. Relief Final J. 5 [hereinafter "Pls.' Mem. ___"]. The Plaintiffs further request that the Court exercise supplemental jurisdiction over a $10 million settlement reached in December 2003 with defendants E. Merck, Merck KgaA and E.M. Industries, Inc. (a/k/a E.M.D. Chemicals, Inc.) [hereinafter referred to as the "Merck Settlement"]. Id. at 32. After careful consideration of the legal briefs submitted by the parties in support of their respective positions, the arguments presented at the hearing held on June 29, 2006, as well as the entire record in this case, the Court will deny the Plaintiffs' motion for the reasons that follow.

BACKGROUND

On June 7, 2001, the Court issued a Memorandum Opinion and Order that dismissed the Plaintiffs' federal antitrust claims because the Plaintiffs failed to establish that their injuries were caused by conduct resulting in a direct, substantial and reasonably foreseeable effect on United States commerce. Empagran, S.A. v. Hoffman-La Roche Ltd., No. 00-CV-1686, 2001 U.S. Dist. LEXIS 20910, at *12-13 (D.D.C. June 7, 2001). The Court also declined to exercise supplemental jurisdiction over the Plaintiffs' claims based on foreign law and alleged violations of customary international law. Id. at *23-30. With regard to the foreign-law claims, the Court identified a number of factors that counseled against exercising supplemental jurisdiction, including the fact that the claims raised novel and complex issues of foreign law, the Court dismissed all the federal antitrust claims for lack of subject matter jurisdiction, and comity and judicial efficiency warranted such a result. Id. at *26. The Court further held that the Plaintiffs' claims based on customary international law lacked viability because:

Plaintiffs cite no caselaw establishing a customary international law of antitrust. Given the absence of any authority establishing such a cause of action, the Court cannot find that there exists a customary international law proscribing the conduct of which plaintiffs complain in this action. Therefore, it is unnecessary for the Court to reach the issue of whether the law requires state action. Accordingly, Count Three of the Amended Complaint should be dismissed for failure to state a claim upon which relief may be granted.

Id. at *29. Accordingly, the Court issued an order on April 26, 2002, entering judgment in favor of the Defendants and dismissing the Plaintiffs' Amended Class Action Complaint. The Plaintiffs subsequently appealed.

On appeal, the United States Court of Appeals for the District of Columbia Circuit issued a divided opinion reversing and remanding on the ground that "where the anticompetitive conduct has the requisite harm on United States commerce, FTAIA [the Foreign Trade Antitrust Improvements Act] permits suits by foreign plaintiffs who are injured solely by that conduct's effect on foreign commerce." Empagran S.A. v. F. Hoffman-La Roche, Ltd., 315 F.3d 338, 341 (D.C. Cir. 2003). The United States Supreme Court, however, granted certiorari and unanimously vacated the D.C. Circuit's decision, concluding that a Sherman Act claim is not viable under the FTAIA if the adverse foreign effect of price-fixing conduct is independent of the adverse domestic effect. F. Hoffman-La Roche, Ltd. v. Empagran S.A., 542 U.S. 155, 173 (2004). The Supreme Court then remanded the case back to the D.C. Circuit to consider the Plaintiffs' alternate argument that the adverse foreign effect was dependent on the adverse domestic effect.*fn1 Id. at 175 (noting that the D.C. Circuit had not considered the Plaintiffs' argument that the foreign injury would not have occurred "but for" the adverse domestic effect of high prices in the United States). On remand, the D.C. Circuit applied a proximate-cause analysis and concluded that "the domestic effects the [Plaintiffs'] cite did not give rise to their claimed injuries so as to bring their Sherman Act claim within the FTAIA exception." Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1271 (D.C. Cir. 2005). The Supreme Court denied certiorari on January 9, 2006. Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 126 S.Ct. 1043 (2006).

DISCUSSION

Rule 60(b)(6) of the Federal Rules of Civil Procedure authorizes the Court to relieve a party from a final judgment or order for any reason justifying such relief. Fed. R. Civ. P. 60(b). The relief afforded by Rule 60(b)(6) is not freely given, however, and is reserved for those circumstances that are deemed to be "extraordinary." See, e.g., Computer Prof'ls for Soc. Responsibility v. United States Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996). Indeed, the D.C. Circuit has stated that "under Rule 60(b)(6) 'relief should be only sparingly used.'" Id.; accord United States v. Pollard, 290 F. Supp. 2d 153, 157 (D.D.C. 2003) (citing Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). The decision whether to grant a Rule 60(b)(6) motion is left to the Court's sound discretion and may be reversed only for abuse of that discretion. Computer Prof'ls for Soc. Responsibility, 72 F.3d at 903.

The Plaintiffs argue that relief is warranted and their request involves a matter of extraordinary circumstance because there is no adequate mechanism for the private enforcement of antitrust laws in the member States of the European Union, in spite of the "unequivocal admonition by EU officials that price fixing cartels are in essence per se unlawful and cartel members must be civilly accountable to the market of wronged victims."*fn2 Pls.' Mem. 5. As a result, in the absence of this Court exercising jurisdiction over their claims against the Defendants, the Plaintiffs "will be left with no effective procedural means by which to seek relief" and the Defendants will be "unjustly rewarded by retaining admittedly ill-gotten profits." Id. at 11.

The Defendants oppose the Plaintiffs' request to reopen the lawsuit on the grounds that

(1) the Plaintiffs lack standing to pursue relief under European Union law because they "never asserted that they are EU entities, purchased vitamins from EU entities or have claims under EU law[,]" (2) the Plaintiffs failed to demonstrate "extraordinary circumstances" entitling them to Rule 60(b)(6) relief, (3) the Court lacks original jurisdiction over this action so there is no basis for exercising supplemental jurisdiction, and (4) the facts implicate several of the factors identified in 28 U.S.C. ยง 1367(c) that favor declining to exercise jurisdiction. Defs.' Mem. of P. & A. In Opp'n to Pls.' Mot. for Relief from Final J. 1-4 [hereinafter "Defs.' Opp'n ___"]. The Defendants further argue that ...


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