30 F.4th 133
2d Cir.2022Background
- Plaintiffs are U.S. residents who allege multinational remittance/telecom companies conspired with Haitian officials to fix prices for remittances and international calls to Haiti.
- The alleged scheme was implemented through a Haitian Presidential Order and two Bank of the Republic of Haiti Circulars: a $1.50 surcharge on certain remittances and a $0.05/minute surcharge on incoming calls (with portions purportedly designated for an education fund).
- Plaintiffs allege the fees were mischaracterized as lawful taxes, were diverted in part to defendants and Haitian officials, and that the measures violated Haitian law (only parliament may levy taxes).
- The district court dismissed all claims against the corporate defendants under the act of state doctrine and, in the alternative, on forum non conveniens grounds; it later dismissed claims against the government defendants under law of the case. Plaintiffs appealed.
- The Second Circuit held the act of state doctrine does not bar the Sherman Act (antitrust) claim because the court need not declare Haitian official acts invalid to adjudicate price-fixing; it reversed as to the antitrust claim and vacated other dismissals for remand and reanalysis. The forum non conveniens dismissal was also vacated for insufficient deference to plaintiffs’ home-forum choice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether act of state bars the Sherman Act price‑fixing claim | The suit challenges defendants’ illegal price‑fixing in the U.S.; adjudication does not require declaring Haitian acts invalid | Doctrine bars adjudication because resolution would necessarily judge propriety of Haitian Presidential Order/Circulars | Reversed: act of state does not bar antitrust claim because court can assume Haitian acts’ legal effect and still find U.S. antitrust liability (Kirkpatrick rule applies) |
| Whether act of state bars Plaintiffs’ state‑law claims | State claims arise from diversion/false statements and do not require invalidating Haitian acts | Success would require finding the Presidential Order/Circulars invalid under Haitian law | Remanded: district court must reanalyze state‑law claims under correct act‑of‑state standard (court did not apply proper analysis) |
| Whether forum non conveniens dismissal was appropriate | Plaintiffs are U.S. residents (some in E.D.N.Y.); strong choice‑of‑forum deference warranted | Case should be tried in Haiti because core facts relate to Haitian government and law | Vacated: district court erred by giving no or insufficient deference to plaintiffs’ home‑forum choice; remand for proper analysis |
| Dismissal against Government Defendants under law of the case | Plaintiffs argued dismissal against corporate defendants did not control separate analysis of government defendants | Defendants relied on prior dismissal to seek same outcome against government defendants | Vacated: law‑of‑the‑case dismissal rejected for same reasons as corporate defendants; remand for merits/act‑of‑state analysis |
Key Cases Cited
- W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400 (1990) (act of state doctrine prohibits declaring foreign official acts "null and void" but does not bar suits that do not require such a declaration)
- Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) (foundational act of state principles; caution on judicial interference with foreign acts)
- United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) (price‑fixing is per se unlawful under Sherman Act)
- Federal Treasury Enters. Sojuzplodoimport v. Spirits Int’l B.V., 809 F.3d 737 (2d Cir. 2016) (act of state prevents courts from questioning validity of foreign decree/assignment but does not preclude merits claims with U.S. situs)
- Kashef v. BNP Paribas S.A., 925 F.3d 53 (2d Cir. 2019) (act of state inapplicable where claim requires proof that acts occurred, not that they were invalid)
- In re Vitamin C Antitrust Litig., 8 F.4th 136 (2d Cir. 2021) (distinguishing act of state from comity/foreign compulsion; act of state inapplicable where validity question does not arise)
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (forum non conveniens framework and deference to plaintiff’s forum choice)
- Iragorri v. United Techs. Corp., 274 F.3d 65 (2d Cir. 2001) (en banc) (sliding‑scale deference to plaintiff’s forum choice; plaintiff residence relevant)
- Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146 (2d Cir. 2005) (forum non conveniens analysis; balancing private and public interest factors)