811 F.2d 127 (2nd Cir. 1987), 561, Transunion Corp. v. PepsiCo, Inc.

• Docket Nº: 561, Docket 86-7805.
• Citation: 811 F.2d 127
• Party Name: RICO Bus.Disp.Guide 6538 TRANSUNION CORPORATION and Union Industries, Inc., Appellants, v. PEPSICO, INC., Appellee.
• Case Date: February 05, 1987
• Court: United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 127

811 F.2d 127 (2nd Cir. 1987)

RICO Bus.Disp.Guide 6538

TRANSUNION CORPORATION and Union Industries, Inc., Appellants,

v.

PEPSICO, INC., Appellee.

No. 561, Docket 86-7805.

United States Court of Appeals, Second Circuit

February 5, 1987

Argued Dec. 9, 1986.

Page 128

Richard G. Menaker, Menaker & Herrmann, New York City (Robert F. Herrmann, of counsel), for appellants.

Ronald S. Rolfe, Cravath, Swaine & Moore, New York City, (Louis M. Solomon, James J. Buchal, of counsel), for appellee.

Before OAKES, CARDAMONE and WINTER, Circuit Judges.

PER CURIAM:

Transunion Corporation ("Transunion") and its subsidiary Union Industries, Inc. ("UII"), Philippines corporations, appeal the judgment and order of the United States District Court for the Southern District of New York, Edward Weinfeld, Judge, dismissing their action against PepsiCo, Inc. ("PepsiCo"), for fraudulently inducing them to enter into a Compromise Agreement to settle an earlier dispute, for damages for breach of this and of an earlier agreement, and for treble damages for civil RICO violations under 18 U.S.C. Secs. 1961-1968 (1982). Judge Weinfeld's opinion is reported as Transunion Corp. v. PepsiCo, Inc., 640 F.Supp. 1211 (S.D.N.Y.1986). Appellants argue that Judge Weinfeld abused his discretion when he granted PepsiCo's motion to dismiss the complaint on the ground of forum non conveniens. They argue too that he abused his discretion when he stayed discovery pending determination of the motion to dismiss. We affirm, substantially on Judge Weinfeld's opinion.

Transunion had a contract (the "1981 Supply Agreement") to supply Pepsi-Cola Bottling Company of the Philippines ("PCBCP") with glass bottles. In 1983, Transunion brought an action in the Philippines against PCBCP and PepsiCo for breach of this contract. Following negotiations in the Philippines and in New York, this action was settled by a 1983 Compromise Agreement that required, inter alia, PepsiCo to buy bottles from Transunion through 1986 and Transunion to meet certain quality standards. In March 1985, PepsiCo sold its Philippines bottling operations to a third party. On December 5, 1985, Transunion gave notice of its cancellation of the 1983 Compromise Agreement on the ground that PepsiCo had breached it by this sale. On December 17, 1985, however, PepsiCo filed suit in the Philippines alleging, inter alia, that appellants had breached the Agreement's quality standards. The Philippine court granted PepsiCo a writ of preliminary attachment on properties of Transunion and its president, Carlos Ty.

On December 27, appellants filed this suit in the Southern District of New York. Dismissal on forum non conveniens grounds was conditioned on PepsiCo's (1) waiver of any statute of limitations defenses it might have in the Philippines with respect to the claims asserted in the Southern District of New York and (2) agreement to make its employees available in the Philippines for deposition or...