632 F.3d 938 (5th Cir. 2011), 09-20084, Spectrum Stores, Inc. v. Citgo Petroleum Corp.

Docket Nº:09-20084.
Citation:632 F.3d 938
Opinion Judge:E. GRADY JOLLY, Circuit Judge:
Party Name:SPECTRUM STORES, INC.; Major Oil Company, Inc.; W.C. Rice Oil Company; Fast Break Foods, LLC, Plaintiffs-Appellants, v. CITGO PETROLEUM CORPORATION; Saudi Arabian Oil Company, doing business as Saudi Aramco; Saudi Petroleum International, Inc.; Aramco Services Company; Saudi Refining, Inc.; Motiva Enterprises, LLC; Petroleos De Venezuela SA; PDV Am
Attorney:William T. Gotfryd, Arthur T. Susman, Susman, Heffner & Hurst, L.L.P., Chicago, IL, for Plaintiffs-Appellants. Lauren Blair, Pedersen & Houpt, P.C., Chicago, IL, John A. Cochrane, Naples, FL, James Bernard Sloan, Lake Forest, IL, for Fast Break Foods, LLC. William A. Isaacson, Hamish PM Hume (arg...
Judge Panel:Before JOLLY, WIENER, and STEWART, Circuit Judges.
Case Date:February 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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632 F.3d 938 (5th Cir. 2011)

SPECTRUM STORES, INC.; Major Oil Company, Inc.; W.C. Rice Oil Company; Fast Break Foods, LLC, Plaintiffs-Appellants,

v.

CITGO PETROLEUM CORPORATION; Saudi Arabian Oil Company, doing business as Saudi Aramco; Saudi Petroleum International, Inc.; Aramco Services Company; Saudi Refining, Inc.; Motiva Enterprises, LLC; Petroleos De Venezuela SA; PDV America, Inc.; PDV Midwest Refining, LLC; PDV Holding, Inc.; Open Joint Stock Company, " Oil Company Lukoil", also known as Lukoil Holdings, also known as Lukoil OAO, also known as OAO Lukoil; Lukoil Americas Corporation; Getty Petroleum Marketing; Lukoil International Trading and Supply Company; Lukoil Pan Americas, LLC, Defendants-Appellees.

Spectrum Stores, Inc.; Major Oil Company, Inc.; W.C. Rice Oil Company, Inc., Plaintiffs-Appellants,

v.

Citgo Petroleum Corporation, Defendant-Appellee.

Fast Break Foods, LLC, on behalf of itself and all others similarly situated, Plaintiff-Appellant,

v.

Saudi Arabian Oil Company, doing business as Saudi Aramco; Saudi Petroleum International, Inc.; Aramco Services Company; Saudi Refining, Inc.; Motiva Enterprises, LLC; Petroleos De Venezuela SA; PDV America, Inc.; Citgo Petroleum Corporation; PDV Midwest Refining, LLC; PDV Holding, Inc., Defendants-Appellees.

Green Oil Co., on behalf of itself and all others similarly situated, Plaintiff-Appellant,

v.

Saudi Arabian Oil Company, doing business as Saudi Aramco; Saudi Petroleum International, Inc.; Aramco Services Company; Saudi Refining, Inc.; Motiva Enterprises, LLC; Petroleos De Venezuela SA; PDV America, Inc.; Citgo Petroleum Corporation; PDV Holding, Inc.; PDV Midwest Refining, LLC; Open Joint Stock Company, " Oil Company Lukoil" also known as Lukoil Holdings, also known as Lukoil OAO, also known as OAO Lukoil; Lukoil Americas Corporation; Getty Petroleum Marketing, Inc.; Lukoil Pan Americas, LLC, Defendants-Appellees.

Countrywide Petroleum Co.; Fast Break Foods, LLC, Plaintiffs-Appellants,

v.

Petroleos De Venezuela SA; PDV America, Inc.; Citgo Petroleum Corporation; PDV Holding, Inc.; PDV Midwest Refining, LLC, Defendants-Appellees.

Fast Break Foods, LLC, Plaintiff-Appellant,

v.

Central Ohio Energy, Inc., on behalf of itself and all others similarly situated; Fast Break Foods, LLC, Plaintiffs-Appellants,

v.

Saudi Arabian Oil Company, doing business as Saudi Aramco; Saudi Petroleum International, Inc.; Aramco Services Company; Saudi Refining, Inc.; Motiva Enterprises, LLC; Petroleos De Venezuela SA; PDV America, Inc.; Citgo Petroleum Corporation; PDV Holding, Inc.; PDV Midwest Refining, LLC; Open Joint Stock Company, " Oil Company Lukoil", also known as Lukoil Holdings, also known as Lukoil OAO, also known as OAO Lukoil; Lukoil Americas Corporation; Lukoil Pan Americas, LLC; Getty Petroleum Marketing, Inc., Defendants-Appellees.

No. 09-20084.

United States Court of Appeals, Fifth Circuit.

February 8, 2011

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William T. Gotfryd, Arthur T. Susman, Susman, Heffner & Hurst, L.L.P., Chicago, IL, for Plaintiffs-Appellants.

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Lauren Blair, Pedersen & Houpt, P.C., Chicago, IL, John A. Cochrane, Naples, FL, James Bernard Sloan, Lake Forest, IL, for Fast Break Foods, LLC.

William A. Isaacson, Hamish PM Hume (argued), Boies, Schiller & Flexner, L.L.P., Washington, DC, for Countrywide Petroleum Co.

Nathan P. Eimer (argued), Chad J. Doellinger, Andrew G. Klevorn, Eimer, Stahl, Klevorn & Solberg, L.L.P., Chicago, IL, Richard, N. Carrell, Fulbright & Jaworski, L.L.P., Houston, TX, for Citgo Petroleum Co.

Carolyn B. Lamm (argued), Hansel Tuan Pham, Anne Davies Smith, Jonathan C. Ulrich, White & Case, L.L.P., Washington, DC, Robert A. Milne, Raj Suresh Gandesha, Robert A. Milne, Thomas J. O'Sullivan, John D. Rue, White & Case, L.L.P., New York City, Warren W. Harris, Carrin Foreman Patman, Bracewell & Giuliani, L.L.P., Houston, TX, for Defendants-Appellees.

Mark Scott Bernstein, Barack, Ferrazzano, Kirschbaum & Nagelberg, Chicago, IL, for Motiva Enterprises, L.L.C.

Tom McNamara, Dale R. Harris, Davis Graham & Stubbs LLP, Denver, CO, for PDV America, Inc. and PDV Holding, Inc.

James Patrick Tuite, Catherine Fairley Spillman, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, DC, for Lukoil Americas Corp., Getty Petroleum Marketing, Inc. and Lukoil Pan Americas, LLC.

Douglas Neal Letter, Lewis Stanley Yelun, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for U.S.

John Barney Beckworth, Watt, Beckworth, Thompson & Henneman, L.L.P., Houston, TX, for Fed. Republic of Nigeria.

Thomas Miles Farrell, Nickens, Keeton, Lawless, Farrell & Flack, Houston, TX, for People's Democratic Republic of Algeria.

Neil H. Koslowe, Shearman & Sterling, Washington, DC, for United Arab Emirates.

Charles Eric Talisman, Patton Boggs, L.L.P., Washington, DC, for State of Qatar.

Douglas R. Cox, Geoffrey M. Sigler, Gibson, Dunn & Crutcher, L.L.P., Washington, DC, for Government of State of Kuwait.

William Allen Gage, Jr., Ann Elizabeth Webb, Buck, Keenan, Gage, Little & Lindley, L.L.P., Houston, TX, for Republic of Iraq.

Thomas T. Hutcheson, Winstead, P.C., Justin Joseph Presnal, Fisher, Boyd, Brown, Boudreaux & Huguenard, Houston, TX, for Republic of Indonesia.

Matthew D. Slater, Cleary, Gottlieb, Steen & Hamilton, L.L.P., Washington, DC, for United Mexican States.

Gregory Scott Coleman, Sr. Atty., Edward Caldwell Dawson, Marc S. Tabolsky, Yetter Coleman, L.L.P., Austin, TX, for Russian Federation.

William Leitzsey Monts, III, Catherine Emily Stetson, Hogan Lovells, US, L.L.P., Washington, DC, for Bolivarian Republic of Venezuela.

Appeals from the United States District Court for the Southern District of Texas.

Before JOLLY, WIENER, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case involves two class actions brought by gasoline retailers against oil production companies (most of which are owned in whole or in part by OPEC member nations), alleging antitrust violations. After consolidation of the suits for disposition

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of pre-trial matters, the oil production companies moved to dismiss. The district court granted dismissal on the ground that disposing of the case on the merits would require the court to pass judgment on the actions of other sovereign nations, which is proscribed by the act of state doctrine. Alternatively, the district court held that dismissal was also warranted by the political question doctrine. The gasoline retailers appealed.

Because the political question doctrine is jurisdictional, we address it first. When we do so, we discern that the complaints before us effectively challenge the structure of OPEC and its relation to the worldwide production of petroleum. Convinced that these matters deeply implicate concerns of foreign and defense policy, concerns that constitutionally belong in the executive and legislative departments, we conclude that we lack jurisdiction to adjudicate the claims. We hold alternatively that the complaints seek a remedy that is barred by the act of state doctrine, that is, an order and judgment that would interfere with sovereign nations' control over their own natural resources. Accordingly, we affirm the judgment dismissing the complaints.

I.

Several U.S. gasoline retailers and other purchasers of petroleum products allege Sherman Act and Clayton Act violations by oil production companies. The Spectrum Appellants1 sued Citgo Petroleum Corporation (Citgo); the Consolidated Appellants2 sued the Saudi Aramco Appellees, 3 the Citgo Appellees,4 the Lukoil Appellees,5 and Motiva Enterprises, LLC (Motiva).6 Five suits from different districts were consolidated in the Southern District

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of Texas for disposition of pre-trial matters. At the time of the appealed-from decision, only two live complaints were before the district court.7 The Spectrum Appellants decided to stand on their original complaint, while the Consolidated Appellants chose to file an amended, consolidated class-action complaint in place of their individual complaints.

A.

The claims raised by Appellants challenge the traditional structure of international energy policy. The global economy is driven by petroleum-based products, and countries with bountiful petroleum resources have attempted to secure the best market prices for their crude oil. With this goal in mind, several oil-rich nations formed the Organization of Petroleum Exporting Countries (" OPEC" ) in the 1960s.8 OPEC's official mission is " to coordinate and unify the petroleum policies of its Member Countries and ensure the stabilization of oil markets in order to secure an efficient, economic and regular supply of petroleum to consumers, a steady income to producers and a fair return on capital for those investing in the petroleum industry." See Organization of the Petroleum Exporting Countries, OPEC: Our Mission, http:// www. opec. org/ opec_ web/ en/ about_ us/ 23. htm (last visited December 30, 2010).

In the years since OPEC's inception, its members have developed nationally owned oil production companies, and these companies have formed and acquired subsidiaries, many of which operate within the United States. OPEC member nations attend periodic meetings at the organization's headquarters in Vienna, Austria to formulate policy. In recent years, some privately owned corporations have begun attending OPEC meetings. The Appellants in this case allege that the national oil companies, as well as their subsidiaries, have conspired with OPEC member nations to fix prices of...

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