BACKGROUND
Capital Currency Exchange, N.V. • (“CCE”), is a financial company organized under the laws of the Netherlands Antilles. CCE has a number of affiliates, including Chequepoint Worldcash, Inc. (“Worldcash”), a New York corporation, and Chequepoint (UK) Ltd. (“Chequepoint UK”), a British Virgin Islands company that transacts business in Great Britain.
CCE and its affiliates are engaged principally in two kinds of international financial transactions: (1) retail currency exchange, e.g., changing pounds to dollars for tourists; and (2) money transfers, e.g., wiring money from the United States to England.
Barclays Bank PLC (“Barclays UK”) and National Westminster Bank PLC (“NatWest UK”) are English corporations. As full-service banks, Barclays UK and NatWest UK offer currency exchange and money transfer services to them customers.
CCE and its affiliates had a longstanding banking relationship with Barclays UK. In 1991, CCE, on behalf of Worldcash, sought a New York State money transmission license. To qualify for this license, Worldcash had to post a $500,000 bond in favor of the New York State banking authorities. CCE arranged with Barclays UK’s New York office to issue an irrevocable letter of credit as security for the bond. This letter of credit was payable in New York and expressly was governed by New York law. The letter of credit, however, named Barclays UK’s London office as the issuer.
In May 1995, for reasons that the parties hotly dispute, Barclays UK told CCE to find another banker. Barclays UK claims that it discovered Chequepoint UK’s complicity in a check kiting scheme, and decided to end its relationship with CCE and its affiliates. CCE counters that Barclays UK wanted to use a trademark that was similar to one owned by CCE, and when CCE objected, Barclays UK set out to end their relationship.
Whatever the reason, CCE began negotiating with NatWest UK in July 1995 to establish a new banking relationship. In August 1995, NatWest UK declined to provide CCE with banking services. The reasons for Nat-West UK’s refusal are disputed. At the time, NatWest UK attributed its refusal to the fact that: (1) NatWest UK and Cheque-point UK were competitors in the money transfer business; and (2) Chequepoint UK had misrepresented facts about NatWest UK’s money transfer services to consumers. NatWest UK now claims that its refusal was based on information that led it to believe that CCE and Chequepoint UK were involved in money laundering. CCE maintains that NatWest UK and Barclays UK conspired to drive CCE out of the money transfer business by depriving it of banking services.
On August 23, 1996, CCE and Worldcash, but not Chequepoint UK, brought suit in the United States District Court for the Southern District of New York (Stanton, /.). The suit named as defendants: (1) NatWest UK; (2) Hamish Gray, the CEO of NatWest UK;
On November 6, 1996, defendants moved to dismiss the complaint: (1) for failure to state a claim; and (2) under the forum non conveniens doctrine. On August 28, 1997, Judge Stanton granted defendants’ motion solely on forum non conveniens grounds. Judge Stanton found that: (1) antitrust suits are subject to the forum non conveniens doctrine; (2) England is an adequate forum for plaintiffs’ suit; and (3) the public and private interests involved in this suit favor litigation in England.
CCE and Worldcash now appeal, arguing that all three of Judge Stanton’s conclusions were erroneous.
DISCUSSION
I. Application of Forum Non Conveniens to Antitrust Suits
CCE and Worldcash posit that an antitrust suit cannot be dismissed under the forum non conveniens doctrine. We disagree.
Judge Stanton’s conclusion that an antitrust suit can be dismissed under the forum non conveniens doctrine is a conclusion of law that we review de novo. See Murray v. British Broad. Corp.,
The common law has long permitted dismissal of suits where jurisdiction and venue are proper, but another forum is substantially more convenient. See Piper Aircraft Co. v. Reyno,
In United States v. National City Lines,
Defendants moved to dismiss on the ground that the Northern District of Illinois was a more convenient forum. The district court granted defendants’ motion and dismissed the complaint without prejudice to refiling in the Northern District of Illinois. See United States v. National City Lines,
On direct appeal pursuant to 15 U.S.C. § 29, the Supreme Court reversed, holding that forum non conveniens could not be used to dismiss a suit brought under the Sherman Act. See National City I,
The National City I Court reasoned that: (1) Section 12 of the Clayton Act demonstrated a congressional intent to expand the possible fora available to antitrust plaintiffs; and (2) application of forum non conveniens in Sherman Act eases would be inconsistent with that intent. “To have broadened the choice of venue for the reasons that brought about that action [namely, to prevent wealthy corporate defendants from transferring suits to distant and expensive venues], only to have it narrowed again by application of the vague and discretionary power comprehended by forum non conveniens would have been incongruous, to say the least.” National City I,
In September 1948, shortly after National City I was decided, Congress enacted 28 U.S.C. § 1404(a), which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Section 1404(a) thus supplanted the common law doctrine of forum non conveniens for transfers between United States district courts. See Fitzgerald v. Westland Marine Corp.,
After § 1404(a) was enacted, the National City I defendants again moved to transfer the case to the Northern District of Illinois, this time relying on the new statute. The district court granted the motion. See United States v. National City Lines,
The National City II Court explained that § 1404(a) authorized the transfer of “any civil action” between federal district courts, including antitrust cases. See id. at 80,
CCE and Worldcash seek to draw a distinction that National City II failed to make between cases governed by § 1404(a) and those governed by the common law doctrine of forum non conveniens. They argue that because National City II was based upon § 1404(a), it overruled National City I only with regard to cases governed by § 1404(a). They then conclude that because § 1404(a) does not apply in this case, forum non conve-niens dismissal is precluded by the holding of National City I. We do not agree.
As an initial matter, plaintiffs ignore Transunion Corp. v. PepsiCo, Inc.,
In T'ransunion, we specifically rejected the argument that National City I foreclosed the availability of forum non conveniens when a statute has a "special venue" provision like Section 12 of the Clayton Act. Even though Transunion was not governed by § 1404(a), we concluded that "the result in National City [I] was effectively overruled by Congress in 1948 when it enacted 28 U.S.C. § 1404(a)," and affirmed dismissal. Id. Thus, in this Circuit, National City I is no longer good law, even in cases that are not governed by § 1404(a). See id.; see also Cruz v. Maritime Co.,
The plaintiffs characterize our conclusion in Transuniom regarding National City I as mere dictum, and maintain that it therefore is not binding upon this panel. We disagree.
Plaintiffs in Transunion argued that National City I `s bar on foram non conveniens dismissals applied to RICO claims because the RICO statute's venue provision was "modeled on present antitrust legislation," H.R.Rep. No. 1549, 91st Cong., 2d Sess. 58 (1970), U.S. Code Cong. & Admin. News at 4007; see Transunion,
The First Circuit reached the same conclusion on the validity of National City I, although it employed somewhat different reasoning. In Howe v. Goldcorp Inv., Ltd.,
As discussed above, National City I involved a transfer between two United States district courts. Justice Breyer pointed out that "the Court in National City Lines I considered only domestic transfers; it did not consider international transfers at all." See id. Because National City I did not consider international transfers, Justice Breyer reasoned, the holding could not have applied to such cases. Justice Breyer therefore concluded that the holding of National City I did not preclude the use of forum non conveniens in the international context, and the question whether National City II overruled National City I was irrelevant. See id.
We concede that the Fifth Circuit has essentially accepted the argument advanced by CCE and Worideash. See Kempe v. Ocean Drilling & Exploration Co.,
For the reasons discussed above, we are not persuaded by the Fifth Circuit's reasoning. In the first place, as Justice Breyer explained, National City I's holding was lim
II. Application of Forum Non Conveniens to this Suit
A. Governing Law
Plaintiffs argue that, even if an antitrust ease can be dismissed on forum non conve-niens grounds, Judge Stanton erred by concluding that the doctrine supported dismissal in this case. We disagree.
Our review of a forum non conve-niens dismissal is extremely limited. See Piper,
Any forum non conveniens analysis involves two steps. First, a court must determine that an adequate alternative forum exists. See Piper,
If a court concludes that an adequate alternative forum exists, it then must weigh the public and private interests identified in Gilbert to determine which forum “will be the most convenient and will best serve the ends of justice.” Peregrine Myanmar,
The public interests to be considered include: (1) having local disputes settled locally; (2) avoiding problems of applying foreign law; and (3) avoiding burdening jurors with cases that have no impact on their community. The private interests embrace: (I) ease of access to evidence; (2) the cost for witnesses to attend trial; (3) the availability of compulsory process; and (4) other factors that might shorten trial or make it less expensive. See Piper,
In assessing convenience, there generally is a strong presumption in favor of a plaintiffs chosen forum. See Piper,
B. Adequate, Alternative Forum
Judge Stanton concluded that England is an adequate forum for plaintiffs’ claims. Plaintiffs argue that England is inadequate because: (1) it does not recognize claims under the Sherman Act; (2) it is unclear whether an English court will award damages, and/or treble damages, in an antitrust suit; and (3) it might not recognize some of plaintiffs’ common law causes of action.
1. Sherman Act Claims
English courts will not enforce the Sherman Act. See British Nylon Spinners Ltd. v. Imperial Chem. Indus., Inc., [1953] 1 Ch. 19 (Court of Appeal 1952). However, forum non conveniens dismissal is not
Plaintiffs may challenge defendants’ allegedly anti-competitive actions under Articles 85 and 86 of the Treaty of Rome, which English courts are bound to enforce. See Case 127/73, BRT v. SABAM, [1974] ECR 51. These provisions are roughly analogous to Sections 1 and 2 of the Sherman Act, and create a private right of action to challenge anti-competitive, monopolistic actions. See Garden Cottage Foods Ltd. v. Milk Mktg. Bd., [1984] 1 AC 130. Given the availability of a cause of action under Articles 85 and 86, we are satisfied that plaintiffs may litigate the subject matter of their Sherman Act claims in England. See PT United Can,
2. Availability of Money Damages
Plaintiffs also argue that England is inadequate because it is unclear whether an English court will award money damages for a violation of Articles 85 and 86 of the Treaty of Rome. In support of their argument, plaintiffs presented a declaration by Alan Rupert Tyrrell, Q.C., an expert on English law. Tyrrell pointed out that no English court has ever awarded money damages in a suit brought under Articles 85 and 86, and plaintiffs argue that the lack of a certain monetary remedy makes England an inadequate forum.
However, Tyrrell also admitted that “[i]n principle the usual remedies of English law, in particular damages, can as a matter of law be awarded in civil actions in an English Court against a[d]efendant who has infringed Article 85 or 86.” Moreover, Tyrrell conceded that it is a position “widely held by jurists ... that infringements of Articles 85 and 86 [of the Treaty of Rome] give rise to an action for damages.” Indeed, in deciding an interlocutory appeal, the Law Lords of the House of Lords concluded (by a vote of four to one) that damages are available for a violation of Article 86. See Garden Cottage Foods Ltd. v. Milk Mktg. Bd., [1984] 1 AC 180. Although a final judgment was never entered in the case, and the decision is therefore considered dicta, we find the Garden Cottage Foods case highly persuasive on the question of whether monetary damages would be available to plaintiffs in England. Thus, although English courts have not yet awarded damages in an antitrust case, it appears that English courts have the power to do so. See also An Bord Bainne v. Milk Mktg. Bd., [1984] 1 CMLR 519.
Plaintiffs also argue that England is inadequate because, even assuming that monetary damages are available, English courts will not award treble damages under the Sherman Act. It is well-established, however, that the unavailability of treble damages does not render a forum inadequate. See Piper,
3. Common Law Claims
Finally, plaintiffs argue that a number of their common law claims against Barclays UK and Taylor cannot be redressed in the English courts. Specifically, plaintiffs assert that: (1) England does not recognize third-party beneficiary liability for breach of contract; (2) England does not imply a covenant of good faith in every contract; and (3) England does not, as a matter of law, impose a fiduciary duty on banks regarding their customers. In essence, plaintiffs argue that it will be harder for them to recover on their common law claims in England. They concede, however, that England recognizes a number of relevant common law causes of action, including breach of contract, tortious interference, and, in certain circumstance, breach of fiduciary duty by a bank. We believe that the English courts can adequate
As discussed above, a forum may be adequate even if it does not provide a plaintiff with causes of action that are identical to those plaintiff alleged in an American court. See PT United Can,
C. Weighing of Gilbert Factors
Judge Stanton found that the private and public interests involved in this case tilt in favor of trying the action in England. Plaintiffs argue that Judge Stanton abused his discretion in weighing the Gilbert factors.
1. Public Interests
Judge Stanton found that the public interests involved here favor neither New York nor England. He reasoned that New York has an interest in settling a dispute involving Worldcash, a New York corporation, and that England has an interest in resolving a dispute involving two of its major banks.
We agree that the public interest factors favor neither forum. Because both jurisdictions have some interest in this dispute, the concern with burdening jurors is not present. See Peregrine Myanmar,
Plaintiffs argue that in assessing the public interest factors, Judge Stanton should have taken into account the United States’ interest in applying the Sherman Act. See Laker Airways v. Pan American World Airways,
2. Private Interests
Judge Stanton found that the private interests strongly favor litigation in England. We agree.
As Judge Stanton found, most of the witnesses in this case reside in England, and the cost of transporting these witnesses to New York could be enormous. In addition, most of the documentary evidence in the case was created, and is stored, in England. Thus, conducting trial in the United States might impose significant burdens on the parties.
Moreover, if this case is tried in the United States, certain witnesses may be unavailable. Plaintiffs’ central antitrust allegation against Barclays UK concerns a transaction that involved CCE, CCE’s English affiliate Cheque-point UK, Barclays UK and another English bank. The employees of the non-party English bank are: (1) crucial to a trial of plaintiffs’ claims against Barclays UK; (2) not subject to compulsory process in the United States; and (3) subject to compulsory process in England. Thus, Judge Stanton prop
D. Presumption in Favor of Plaintiffs' Choice of Foram
Judge Stanton found that the presumption in favor of plaintiffs' choice was weakened in this case because the real party in interest is Chequepoint UK, a foreign corporation. See Piper,
It is clear that, at bottom, this is a suit about two English banks' refusal to do business in England with CCE and Chequepoint UK. Plaintiffs have attempted to morphose this case into a dispute that concerns the United States by discussing the letter of credit issued by Barclays UK to CCE in New York. However, the letter of credit is a red herring. The guavamen of plaintiffs' claims concern: (1) Barclays UK's alleged ploy to force COB and Chequepoint UK into default on an English checking transaction; (2) Bar-clays UK's subsequent refusal to provide banking services in England to CCE and its affiliates; and (3) NatWest UK's refusal to provide banking services in England to COB and its affiliates. The real parties in dispute with the defendants are OCE and Cheque-point UK.
Because the real parties in interest are foreign corporations, there is not a strong presumption in favor of the plaintiffs' choice of forum. See Piper,
CONCLUSION
Suits brought under the Sherman Act are subject to dismissal under the foi-am non conveniens doctrine. In this case, Judge Stanton did not abuse his discretion by dismissing the complaint on the ground that England is a more convenient forum. Accordingly, the judgment of the district court is hereby AFFIRMED.