9 F.4th 247
5th Cir.2021Background
- Petrobras America alleges Samsung induced Petrobras executives (Cerveró and Duque) to accept $10 million in bribes—paid via intermediaries and reflected as increased costs in Pride’s drilling-services proposal—so Samsung could trigger a construction option for a drillship (DS-5).
- Pride contracted with Petrobras for DS-5 drilling services in January 2008; Samsung contracted with Pride to build the DS-5 in December 2007. Petrobras later had insufficient work for the vessel and by 2015 put the DS-5 on permanent standby.
- In March–May 2015 Petrobras conducted an internal audit of DS-5 contracting, which found suspicious broker contacts and unfavorable contract terms and recommended notifying prosecutors; the audit report was finalized May 18, 2015.
- Padilha (the intermediary) entered a plea agreement in July 2015 disclosing the DS-5 bribery scheme; Petrobras cancelled the DS-5 drilling-services contract after those disclosures.
- Petrobras sued Samsung in March 2019 in Texas state court for common-law fraud and civil RICO; Samsung removed and moved to dismiss under Rule 12(b)(6) as time-barred. The district court took judicial notice of Petrobras’s 2014 SEC filing and news articles about related but separate Petrobras bribery schemes and dismissed. Petrobras appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the statute of limitations accrue for Petrobras’s RICO and fraud claims? | Accrual did not occur until Petrobras’s May 2015 audit (or later), when it discovered facts supporting the fraud claim. | Petrobras knew (or should have known) of its injury as early as 2007, and certainly by 2014 from news and SEC disclosures. | Accrual before March 5, 2015 was not established as a matter of law; factual dispute precludes 12(b)(6) dismissal. |
| Can knowledge of bribing officers (Cerveró and Duque) be imputed to Petrobras? | No—those officers acted adversely and for their own benefit, so their knowledge is not imputed. | Yes—an employer is charged with its officers’ knowledge. | Officers acted adversely by accepting bribes; their knowledge is not imputed to Petrobras. |
| Was it proper to take judicial notice of news articles and SEC filings and do they prove notice of the DS-5 scheme? | News and SEC filings did not mention the DS-5 (or Pride) and so did not put Petrobras on inquiry notice for DS-5. | The district court permissibly relied on those public sources to infer notice by 2014. | Judicial notice of Petrobras’s SEC filings (for what they state) was permissible; news articles were not proper for judicial notice. Even if considered, they did not conclusively show notice of the DS-5 scheme. |
| Was dismissal under Rule 12(b)(6) appropriate on statute-of-limitations grounds? | No—Plaintiffs plausibly alleged they lacked knowledge until 2015; dismissal was premature. | Yes—Defendant asserted an affirmative statute-of-limitations defense establishing claims were time-barred. | Dismissal was improper; Samsung failed to conclusively establish the claims accrued before March 5, 2015. |
Key Cases Cited
- Rotella v. Wood, 147 F.3d 438 (5th Cir. 1998) (RICO accrual rule: claim accrues when plaintiff discovers or should discover the injury)
- Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308 (U.S. 2007) (court may consider documents incorporated into the complaint on 12(b)(6) review)
- Askanase v. Fatjo, 130 F.3d 657 (5th Cir. 1997) (agent’s knowledge not imputed when agent acts adversely to employer)
- Trinity Marine Prods., Inc. v. United States, 812 F.3d 481 (5th Cir. 2016) (statute-of- limitations dismissal improper when defendant fails to conclusively establish accrual date at pleading stage)
- Lovelace v. Software Spectrum Inc., 78 F.3d 1015 (5th Cir. 1996) (SEC filings may be judicially noticed for their contents, not for truth)
- Jensen v. Snellings, 841 F.2d 600 (5th Cir. 1988) (a plaintiff who learns facts prompting inquiry must pursue reasonably diligent investigation)
- Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029 (5th Cir. 2010) (fraudulently procured contract can be a cognizable injury)
- Jones v. Alcoa, Inc., 339 F.3d 359 (5th Cir. 2003) (12(b)(6) dismissal under statute-of-limitations is proper only when complaint plainly shows claim is time-barred)