Lamb v. Phillip Morris, Inc.

• Decision Date: 28 September 1990
• Docket Number: No. 89-5960,89-5960
• Citation: 915 F.2d 1024
• Parties: , Fed. Sec. L. Rep. P 95,510, 1990-2 Trade Cases 69,209 Billy LAMB and Carmon Willis, Plaintiffs-Appellants, v. PHILLIP MORRIS, INC. and B.A.T. Industries, PLC, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1024

915 F.2d 1024

59 USLW 2217, Fed. Sec. L. Rep. P 95,510,

1990-2 Trade Cases 69,209

Billy LAMB and Carmon Willis, Plaintiffs-Appellants, v. PHILLIP MORRIS, INC. and B.A.T. Industries, PLC, Defendants-Appellees.

No. 89-5960.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 24, 1990.

Decided Sept. 28, 1990.

John F. Lackey (argued), and John F. Lackey, Lackey & Lackey, Richmond, Ky., for plaintiffs-appellants.

Robert M. Watt, III, Stoll, Keenon & Park, Lexington, Ky., Abe Krash, Robert N. Weiner (argued), Philip W. Horton, Arnold & Porter, Washington, D.C., for Phillip Morris, Inc.

James Park, Jr. (argued), Brown, Todd & Heyburn, Lexington, Ky., for B.A.T. Industries, PLC.

Before KEITH and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

In this antitrust action, plaintiffs Billy Lamb and Carmon Willis appeal from the dismissal of their claims against defendants Phillip Morris, Inc. (Phillip Morris), and B.A.T. Industries, PLC (B.A.T.). Because we find that the act of state doctrine presents no impediment to adjudication of the plaintiffs' antitrust claims, we reverse the district court's dismissal of those claims and remand them for further consideration. Since we find that no private right of action is available under the Foreign Corrupt Practices Act of 1977 (FCPA), 15 U.S.C. Secs. 78dd-1, 78dd-2, we affirm the dismissal of the plaintiffs' FCPA claim.

I.

In accordance with Kerasotes Michigan Theatres, Inc. v. National Amusements, Inc., 854 F.2d 135 (6th Cir.1988), we must accept as true all factual allegations in the complaint when reviewing the granting of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. Id. at 136. Moreover, dismissal under Rule 12(b)(6) is appropriate only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); accord Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Therefore, we shall set forth the facts as alleged in the plaintiffs' complaint.

Plaintiffs Lamb and Willis, along with various other Kentucky growers, ¹ produce burley tobacco for use in cigarettes and other tobacco products. Defendants Phillip Morris and B.A.T. routinely purchase such tobacco not only from Kentucky markets serviced by the plaintiffs, but also from producers in several foreign countries. Thus, tobacco grown in Kentucky competes directly with tobacco grown abroad, and any purchases from foreign suppliers necessarily reduce the defendants' purchase of domestic tobacco.

On May 14, 1982, a Phillip Morris subsidiary known as C.A. Tabacalera National and a B.A.T. subsidiary known as C.A. Cigarrera Bigott, SUCS. entered into a contract with La Fundacion Del Nino (the Children's Foundation) of Caracas, Venezuela. The agreement was signed on behalf of the Children's Foundation by the organization's president, the wife of the then President of Venezuela. Under the terms of the agreement, the two subsidiaries were to make periodic donations to the Children's Foundation totalling approximately $12.5 million dollars. In exchange, the subsidiaries were to obtain price controls on Venezuelan tobacco, elimination of controls on retail cigarette prices in Venezuela, tax deductions for the donations, and assurances that existing tax rates applicable to tobacco companies would not be increased. According to the plaintiffs' complaint, the defendants have arranged similar contracts in Argentina, Brazil, Costa Rica, Mexico, and Nicaragua.

In the plaintiffs' view, the donations promised by the defendants' subsidiaries amount to unlawful inducements designed and intended to restrain trade. The plaintiffs assert that such arrangements result in artificial depression of tobacco prices to the detriment of domestic tobacco growers, while ensuring lucrative retail prices for tobacco products sold abroad. In this action, the plaintiffs seek redress in the forms of treble damages and injunctive relief principally for the former result--reduction in domestic tobacco prices.

The plaintiffs filed their complaint alleging violations of federal antitrust laws on August 21, 1985, in the United States District Court for the Eastern District of Kentucky. Both defendants promptly moved for dismissal on several grounds. The plaintiffs then sought leave to amend their complaint to add a claim under the FCPA. On June 28, 1989, the district court dismissed the plaintiffs' antitrust claims as barred by the act of state doctrine, and dismissed the FCPA claim as an impermissible private action. This appeal followed.

The plaintiffs contend that the district court erroneously abdicated its authority to consider the antitrust claims asserted in the complaint by invoking the act of state doctrine. The plaintiffs further assert that the district court erred in prohibiting them from pursuing a private cause of action under the FCPA. We shall address these two issues individually. Our review of the district court's ruling on the defendants' Rule 12(b)(6) motion is de novo. See, e.g. Peck v. General Motors Corp., 894 F.2d 844, 846 (6th Cir.1990).

II.

"The act of state doctrine in its traditional formulation precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory." ² Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401, 84 S.Ct. 923, 926, 11 L.Ed.2d 804 (1964). As the Supreme Court explained in Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897), this concept is based on the notion that "[e]very sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory." Id. at 252, 18 S.Ct. at 84; see also Oetjen v. Central Leather Co., 246 U.S. 297, 303, 38 S.Ct. 309, 311, 62 L.Ed. 726 (1918) (reaffirming Underhill ). The evolution of the act of state doctrine has revealed that it is not "compelled either by the inherent nature of sovereign authority ... or by some principle of international law." Sabbatino, 376 U.S. at 421, 84 S.Ct. at 936. Although the text of the Constitution similarly "does not require the act of state doctrine," id. at 423, 84 S.Ct. at 938, the doctrine has " 'constitutional' underpinnings ... aris[ing] out of the basic relationships between branches of government in a system of separation of powers" and based upon "the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder" the conduct of foreign affairs. Id.; see also W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int'l, --- U.S. ----, 110 S.Ct. 701, 704, 107 L.Ed.2d 816 (1990). In this respect, "[t]he act of state doctrine is not a jurisdictional limit on courts, but rather is 'a prudential doctrine designed to avoid judicial action in sensitive areas.' " ³ Liu v. Republic of China, 892 F.2d 1419, 1431 (9th Cir.1989); accord Riedel v. Bancam, S.A., 792 F.2d 587, 592 (6th Cir.1986).

Although the act of state doctrine typically involves an assessment of "the likely impact on international relations that would result from judicial consideration of the foreign sovereign's act," Allied Bank Int'l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 520-21 (2d Cir.), cert. dismissed, 473 U.S. 934, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985), we must initially determine whether the defendants in this case have established the factual predicate for application of the act of state doctrine. ⁴ While act of state analysis is not generally guided by "an inflexible and all-encompassing rule," see Sabbatino, 376 U.S. at 428, 84 S.Ct. at 940, the Supreme Court recently indicated that, as a threshold matter, "[a]ct of state issues only arise when a court must decide--that is, when the outcome of the case turns upon--the effect of official action by a foreign sovereign." Kirkpatrick, 110 S.Ct. at 705 (emphasis omitted). Here, the defendants have failed to make such a showing.

The defendants view Justice Holmes' discussion of the act of state doctrine in American Banana Co. v. United Fruit Co., 213 U.S. 347, 357-58, 29 S.Ct. 511, 513, 53 L.Ed. 826 (1909), as supportive of their position that the doctrine may be applied if a legal claim impugns the motivations of a foreign state. See also Clayco Petroleum Corp. v. Occidental Petroleum Corp., 712 F.2d 404, 407-08 (9th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984); Hunt v. Mobil Oil Corp., 550 F.2d 68, 77 (2d Cir.1977). However, the Supreme Court's recent decision in Kirkpatrick--a case involving civil RICO and Robinson-Patman Act claims relating to a New Jersey corporation's bribery of Nigerian officials--undercuts their contention by explicitly eschewing the logic of American Banana. ⁵ The Court explained in Kirkpatrick that the act of state doctrine in its present formulation "does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdiction shall be deemed valid." 110 S.Ct. at 707. In reaching this conclusion and permitting the plaintiffs' claims to go forward, Justice Scalia's opinion for the unanimous Court held that the act of state doctrine does not "bar[ ] a court in the United States from entertaining a cause of action that ... require[s] imputing to foreign officials an unlawful motivation (the obtaining of bribes) in the performance of ... an official act." Id. at 702. Like the bribes underlying the civil RICO and Robinson-Patman Act claims in Kirkpatrick, the payments made by the defendants in this case to induce favorable action in Venezuela may support the...