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D''Agostino v. Johnson & Johnson Inc.8/4/1993
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. ยงยง 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 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 raise
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