Sniado v. Bank Austria AG

352 F.3d 73, 2003 U.S. App. LEXIS 23748, 2003 WL 22753144
CourtCourt of Appeals for the Second Circuit
DecidedNovember 21, 2003
DocketDocket No. 02-7012
StatusPublished
Cited by2 cases

This text of 352 F.3d 73 (Sniado v. Bank Austria AG) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sniado v. Bank Austria AG, 352 F.3d 73, 2003 U.S. App. LEXIS 23748, 2003 WL 22753144 (2d Cir. 2003).

Opinion

McLAUGHLIN, Circuit Judge.

Appellant John L. Sniado, III appeals from a decision of the United States District Court for the Southern District of New York (Schwartz, /.) dismissing his putative class action pursuant to Fed. R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction under § 6a(2) of the Foreign Trade Antitrust Improvements Act (“FTAIA”). See 15 U.S.C. § 6a. In dismissing under § 6a(2), the district court assumed arguendo that Sniado satisfied the jurisdictional requirements of § 6a(l) and stated sua sponte that, even if Sniado had satisfied the jurisdictional requirements of the FTAIA, he would lack standing to prosecute this antitrust claim.

We vacate the district court’s dismissal under § 6a(2) and remand for the court to determine whether Sniado satisfies the jurisdictional requirements of § 6a(l) and has standing. We also grant Sniado leave to file a motion to obtain permission from the district court to replead pursuant to Fed.R.Civ.P. 15(a).

BACKGROUND

During the 1980s, plaintiff-appellant John L. Sniado, III, a resident of New York, regularly traveled to Europe, where he exchanged American dollars for Euro-currencies at various European banks.

In April 1997, Gerhard Praschak, the head of Kontrollbank in Austria, committed suicide. He confessed, in a suicide note, that Austria’s banking system was [76]*76rife with price-fixing of exchange rate fees for Euro-currencies.

In September 1999, the European Commission (“Commission”) issued “statements of objection” to eight Austrian banks, seven of which are defendants-appellees in this action. In these statements, the Commission said it had evidence that the defendants-appellees fixed currency exchange fees. The Commission conducted a wide-scale antitrust investigation that potentially implicated over 120 European banks in Austria, Belgium, France, Germany, Holland, Ireland, Italy, Portugal, and Spain.

Having discovered that he was a victim of this alleged European antitrust conspiracy, Sniado filed a putative class action on behalf of all persons and businesses in the United States who had paid foreign exchange fees at “supra-competitive” rates. See Sniado v. Bank Austria AG, 174 F.Supp.2d. 159 (S.D.N.Y.2001) (Schwartz, J.). He alleged violations of the Sherman Act, 15 U.S.C. § 1, and the Clayton Act, 15 U.S.C. § 15.

The defendants are European banks, most of which are alleged to have offices in the United States. The Austrian banks include Bank Austria AG, Erste Bank der Ósterreiehisechen Sparkassen AG, Raif-feisen Zentralbank Osterreich AG, Bank für Arbeit und Wirtschaft AG, Osterreich-ische Postsparkasse, Raiffeisenlandesbank Northern Austria-Vienna, Northern Austria Landesbank-Hypothekenbank, and Osterreichische Volksbanken AG. The Dutch banks include ABN AMRO Bank, N.V., ING Bank N.V., GWK Bank N.Y., and Fortis N.V. The Italian Banks include Banca Intesta, Banca di Roma SpA, Banca Nazionale del Lavoro SpA, UniCredito Ita-liano SpA, and Sanpaolo IMI SpA. The solitary German bank is Deutsche Bank AG.

Sniado claims that, while in Europe, he paid what he called supra-competitive foreign exchange fees to defendants, and he now seeks to recover his financial losses. He also alleges that the defendants have “exchanged millions of dollars of European currency in the United States and in Europe” for supra-competitive fees.

In the district court, certain defendants moved under Fed.R.Civ.P. 12(b)(1) to dismiss for lack of subject matter jurisdiction pursuant to the FTAIA, and under Fed. R.Civ.P. 12(b)(6) to dismiss for failure to state a claim. Sniado expressed his intention to amend his complaint and, in the meantime, the defendants before the court agreed to withdraw their motion to dismiss without prejudice.

After Sniado filed his amended complaint, the defendants refiled their motion to dismiss. They were joined, in this motion, by additional defendants who had subsequently been served with the amended complaint. Certain defendants also moved to dismiss for lack of personal jurisdiction. However, the court postponed briefing on personal jurisdiction until the issue of subject matter jurisdiction was resolved. Sniado opposed the motion to dismiss for lack of subject matter jurisdiction and sought leave to conduct discovery relating to subject matter jurisdiction.

After oral argument on the motion to dismiss, Sniado asked Judge Schwartz to defer ruling on subject matter jurisdiction until this Court passed on Kruman v. Christie’s Int’l PLC, 129 F.Supp.2d 620 (S.D.N.Y.2001) — which was on appeal at the time — and until the United States Supreme Court decided whether to grant certiorari on a Fifth Circuit case, Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420 (5th Cir.2001). Both cases addressed the same issue decided by the district court below: whether, under § 6a(2) of the FTAIA, defendants’ conduct [77]*77must give rise to “a” claim, generally, or to “the” specific antitrust claim of the plaintiff.

Because defendants presented a facial challenge to Sniado’s amended complaint, the court denied Sniado’s discovery motion. The district court also denied Snia-do’s motion for a stay and dismissed his complaint.

To establish jurisdiction under the FTAIA, a plaintiff must satisfy the requirements of both §§ 6a(l) and 6a(2). Failure to plead either one is fatal to jurisdiction. In accordance with “the weight of authority,” including notably Kruman, 129 F.Supp.2d 620 (S.D.N.Y.2001), the district court construed § 6a,(2) of the FTAIA to preclude subject matter jurisdiction over Sniado’s claim. (The court willingly assumed, without deciding, that Sniado would have satisfied the jurisdictional requirements of § 6a (1) ). Although the issue was not raised by the defendants, the court also suggested that Sniado would lack standing to prosecute this antitrust action.

Thereafter, the Supreme Court denied certiorari in Den Norske. See 534 U.S. 1127, 122 S.Ct. 1059, 151 L.Ed.2d 967 (2002). Subsequently, we reviewed Kru-man, the district court decision upon which Judge Schwartz relied. See 284 F.3d 384 (2d Cir.2002).

Sniado now appeals.

DISCUSSION

We review de novo the district court’s conclusion that Sniado’s amended complaint does not, on its face, allege subject matter jurisdiction under the FTAIA. See Kruman, 284 F.3d at 390.

The FTAIA provides that:
Sections 1 to 7 of this title [the Sherman Act] shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless—

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Related

Sniado v. Bank Austria AG
378 F.3d 210 (Second Circuit, 2004)
Sniado, III v. Bank Austria Ag
352 F.3d 73 (Second Circuit, 2003)

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352 F.3d 73, 2003 U.S. App. LEXIS 23748, 2003 WL 22753144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sniado-v-bank-austria-ag-ca2-2003.