D'Agostino v. Johnson & Johnson, Inc.

• Decision Date: 04 August 1993
• Parties: Richard J. D'AGOSTINO, Plaintiff-Appellant, v. JOHNSON & JOHNSON, INC., Robert N. Wilson and Ronald G. Gelbman, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 516

133 N.J. 516

628 A.2d 305

Richard J. D'AGOSTINO, Plaintiff-Appellant, v. JOHNSON & JOHNSON, INC., Robert N. Wilson and Ronald G Gelbman, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Feb. 2, 1993.

Decided Aug. 4, 1993.

Douglas V. Rigler, Washington, DC, a member of the District of Columbia bar, for plaintiff-appellant (Lasser, Hochman, Marcus, Guryan & Kuskin, Roseland, attorneys; Mr. Rigler, Washington, DC, and Barry L. Eisenberg, Roseland, on the briefs).

Alan E. Kraus, Morristown, for defendants-respondents (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Nicholas deB. Katzenbach, of counsel; Mr. Kraus, David P. Arciszewski, and Jeffrey M. Siminoff, on the briefs).

The opinion of the Court was delivered by

O'HERN, J.

For a second time we review the 1985 employment dispute between Richard D'Agostino and the Johnson & Johnson Corporation and certain of its employees (hereinafter J & J or J & J defendants). In 1989, we reviewed the contention of J & J that plaintiff's complaint should be dismissed under the doctrine of forum non conveniens. J & J argued that New Jersey was an inconvenient forum for resolution of the dispute more properly brought in a Swiss court, because D'Agostino was a resident of Switzerland and had been employed by a Swiss subsidiary of J & J. On that first occasion, we affirmed substantially for the reasons stated in the Appellate Division opinion, reported at 225 N.J.Super. 250, 542 A.2d 44, holding that the matter could proceed in New Jersey. 115 N.J. 491, 559 A.2d 420 (both cases hereinafter D'Agostino I). At that time, we expressed the reservation that resolution of the forum non conveniens issues did not foreclose or foreshadow any issue of substantive law, including choice-of-law questions that could be better addressed following an exchange of discovery. Ibid.

Following the completion of discovery, the core issues, according to the trial court, remain as "hotly disputed" as they had been at the outset of the case. Plaintiff continues to assert that at the behest of defendants he was wrongfully discharged from employment with J & J's subsidiary because he refused to participate in what he perceived to be an illegal bribing of Swiss licensing authorities. J & J continues to insist that no illegal payments were involved, but only consulting fees, which are perfectly proper under Swiss law.

In this appeal we must consider the question left open under D'Agostino I, namely, whether Swiss or domestic law governs the claims asserted in the New Jersey forum against a New Jersey corporation and its officers. We hold that because the underlying controversy 1) involves an alleged violation in New Jersey of the Foreign Corrupt Practices Act, 15 U.S.C.A. §§ 78dd-1 to -2 (hereinafter FCPA), which sets forth a domestic policy against bribery of a foreign regulatory official; 2) involves the participation of a United States citizen who might have been exposed to criminal prosecution had the conduct violated the FCPA and was an alleged violation of a New Jersey corporation's internal policy against such overseas commercial bribery; and 3) because violation of the governmental policies could have an indirect effect on the domestic market for pharmaceutical products and the health and welfare of this forum's citizens, New Jersey's interests in resolving this dispute under its laws outweigh the Swiss interest in the at-will employment relationship that would not seek to deter such conduct through its civil law.

I

We hasten to emphasize at the outset of this opinion that these charges against the J & J defendants remain simply that: unproven allegations. Because the case comes before us on a motion for summary judgment, the facts are assumed to be as plaintiff alleges them, and plaintiff is entitled to "all reasonable inferences that may be drawn in [his] favor." Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 61, 417 A.2d 505 (1980) (citing R. 4:46-2).

D'Agostino, a United States citizen and a long-time resident of Switzerland, was hired in December 1984 by J & J's wholly-owned overseas subsidiary, Cilag, as General Manager of Cilag's Swiss Marketing Division. Although born in Newark and raised during early childhood in East Orange, at no time during this case has plaintiff been a New Jersey resident. Plaintiff was hired through the efforts of an employment agency chosen by J & J and was interviewed by a J & J organization in Germany. In accepting employment, plaintiff expressed the hope that he was entering into a long-term career with J & J with the eventual prospect of a United States-based position. Plaintiff signed an employment contract with Cilag in Switzerland on December 21, 1984. The agreement provided that either party could terminate the employment relationship on six-months notice and that Swiss law would govern any disputes under the contract. Plaintiff's employment with Cilag was announced on the letterhead of J & J International, a New Jersey company, on February 14, 1985.

D'Agostino began working for Cilag at its Schaffhausen, Switzerland location in April 1985. His responsibilities included the marketing and registration in Switzerland of pharmaceutical products developed by Cilag and other J & J subsidiaries. D'Agostino reported to Dr. Hans Schmid, Chairman of Cilag, and Paul G. Reinstadtler, Managing Director of Cilag, Germany.

On June 4, 1985, plaintiff received a letter from the office of General Counsel of J & J in New Jersey reminding him to execute and return to New Jersey an acknowledgement of adherence to a J & J Policy Statement, which he had first received on January 5, 1985. The Policy Statement called for the certification that the employee would comply with J & J's policy against the use of corporate funds for unlawful purposes, including bribes, illegal political contributions, or payoffs. Plaintiff asserts that although he asked to see the Policy Statement before returning his acknowledgment, he was bound by the policy nonetheless.

On June 8, 1985, plaintiff participated in a worldwide J & J management meeting in New Jersey. Discussions included the registration in Switzerland of the synthetic hormone Immunox. Robert Wilson, Vice Chairman of J & J and Executive Vice President of J & J International, allegedly inquired about the registration status of Immunox. When plaintiff stated that the Swiss authorities had rejected registration for the second time Dr. Schmid and Dr. Hans Balthasar, a Vice President of J & J International and an employee of Cilag, assured J & J management that the matter was under control.

On June 24, 1985, shortly after returning to Switzerland, D'Agostino received a voucher from Dr. G. Kretzschmar, a Cilag executive, seeking payment of "consulting fees" to Dr. Rudolph Preisig. Dr. Preisig was the President of the College of Experts, an advisory committee to the Intercantonal Office of the Control of Medicaments, which controls the registration of new drugs in Switzerland. Plaintiff refused to sign the voucher, suspecting the payment to be a bribe, and sought information. On June 25, 1985, Dr. Kretzschmar presented a second payment voucher for a lesser amount to D'Agostino. Once again, D'Agostino refused to approve the payment. Several days later, after receiving a dossier on Dr. Preisig, D'Agostino discussed the matter with Dr. Kretzschmar. He was told that no contract with Dr. Preisig existed. D'Agostino states that Dr. Kretzschmar told him, "you have to pay, you have to go along. He says, it has been going on for a long time. Be happy that it wasn't more."

On July 23, 1985, plaintiff was asked for "a second or third time" to authorize the payments for Dr. Preisig. Plaintiff met with his supervisor, Reinstadtler, and Dr. Kretzschmar and again refused to sign the voucher without a better explanation. According to D'Agostino, Reinstadtler left the meeting to make a phone call. The next day, July 24, 1985, plaintiff was notified by Reinstadtler that Dr. Schmid had decided to discharge him. Plaintiff asserts that he notified J & J's General Counsel, in late July, in New Brunswick, and an executive of J & J in Sprittenbach, Switzerland, about suspected violations of the company's Policy Statement concerning unlawful bribes and payoffs. A separation agreement was negotiated, but plaintiff never signed it. Dr. Schmid, Chairman of Cilag and Vice President of J & J International, issued a resignation announcement on August 1, 1985, on J & J International letterhead.

Thereafter, plaintiff claims that matters went from bad to worse. J & J allegedly conspired to deprive him of employment in the pharmaceutical industry and defamed his business reputation. On November 3, 1986, Cilag filed a declaratory-judgment action in Switzerland seeking a judgment to establish that D'Agostino had no claims against Cilag resulting from his termination. D'Agostino did not appear, and on November 26, 1986, the complaint was dismissed. On January 20, 1987, Cilag filed another declaratory-judgment action. The Swiss court, on May 3, 1988, dismissed the declaratory-judgment suit, holding that D'Agostino's claims, outside the contract and being pursued in New Jersey, involved many uncertainties, thereby making Cilag's declaratory-judgment action impossible to grant.

In between Cilag's filing of the two declaratory-judgment suits in Switzerland, D'Agostino, on November 20, 1986, filed a criminal complaint in Switzerland, accusing Cilag of bribing Dr. Preisig. On July 31, 1987, after what has been described by the Appellate Division as a "thorough investigation," the examining magistrate found no impropriety.

"The accusation that the payments concerned were intended as gifts, or as improper advantages offered to Professor Preisig, is therefore conclusively refuted--in retrospect, the accusation must have arisen from the fact that the accuser was totally unaware of the actual situation."

[255 N.J.Super. at 314, 605 A.2d...