Opinion
Misc. No. 99-197 (TFH), MDL No. 1285
August 4, 2003
ORDER Re: Dispositive Motions Concerning Foreign Purchases [#37-#40]
Pending before the Court are the following four motions for summary judgment:
#37 Certain Defendants Motion for Summary Judgment Against Agribrands;
#38 Defendants' Motion For Summary Judgment Relating to Plaintiff R.P. Scherer Corporation's Foreign Purchases Claims;
#39 Motion of Certain Defendants For Partial Summary Judgment Against Cargill, Inc. and Its Foreign Affiliates for Purchases Made for Delivery Outside the United States; and,
#40 Certain Defendants' Motion For Partial Summary Judgment Against Kellogg on Claims Based Upon Certain Transactions in Foreign Commence by Kellogg's Foreign Affiliates.
In light of the D.C. Circuit's Opinion in Empagran S.A. v. F. Hoffman-LaRoche. Ltd. 315 F.3d 338 (D.C. Cir. January 17, 2003), it is hereby ORDERED that these motions are DENIED.
Significantly, no mandate has issued from the D.C. Circuit as the appellants filed a petition for rehearing en banc on February 3, 2003 which has yet to be decided. Despite recognition that the Empagran decision essentially renders the criteria set forth in the Court's June 7, 2001 Order moot — the criteria upon which Defendants' base their motions for summary judgment — Plaintiffs urge the Court to deny motions on the merits under the criteria set forth in that Order. This Court is, however, bound by the ruling in Empagran despite the fact that no mandate has issued. In Vo Van Chau v. U.S. Dept. of State. 891 F. Supp. 650, 654 (D.D.C. 1995), the court said:
[Defendants argue that this Court is not bound to follow LAVAS, since the mandate in LAVAS has not yet issued from the Court of Appeals. This argument has no merit. The District Court "is bound by the principle of stare decisis to `abide by a recent decision of one panel of [the Court of Appeals] unless the panel has withdrawn the opinion or the court en bane has overruled it'." The fact that a party has petitioned for rehearing, automatically resulting in the stay of the mandate under Rule 41, Fed.R.App.P., is irrelevant.
(citing Association of Civilian Technicians, Montana Air Chapter v. FLRA, 756 F.2d 172, 176 (D.C. Cir. 1985) (quoting Brewster v. Commissioner of Internal Revenue, 607 F.2d 1369, 1373 (D.C. Cir. 1979)).
SO ORDERED.