Antitrust Law Daily Wrap Up, ANTITRUST—DDC: Antitrust Suit Against OPEC Dismissed for Failure to Serve Organization, (Jan 16, 2013)

By Jeffrey May, J.D.

The public interest group Freedom Watch failed to effectuate service of process on the Organization of Petroleum Exporting Countries (OPEC) by mailing its antitrust complaint to OPEC and serving an agent of OPEC at its headquarters in Vienna, Austria, the federal district court in Washington, D.C. has ruled. Therefore, OPEC's motion to dismiss the suit, which alleged price fixing and market division, pursuant to Federal Rule of Civil Procedure 12(b)(5) was granted (Freedom Watch, Inc. v. Organization of Petroleum Exporting Countries, January 15, 2013, Walton, R.).

Freedom Watch had the burden of establishing the validity of service of process. OPEC asserted and Freedom Watch did not dispute that Rule 4(h)(2) governs the service of the international entity. OPEC was an unincorporated association subject to suit under a common name and headquartered outside of the United States. Moreover, no waiver of service had been filed, and federal law did not provide other means of service. Thus, Freedom Watch had to effectuate service on OPEC “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).”

Relying on the Eleventh Circuit's reasoning in Prewitt Enterprises, Inc. v. OPEC (11th Cir. 2003) 353 F.3d 916, 2003-2 Trade Cases ¶74,235, which also involved an attempt to serve OPEC, the court concluded that service on the agent and the mailing of the complaint were not sufficient under Rule 4(f). As explained in Prewitt, international law did not provide a means of service, and Austria prohibited (1) direct service from abroad by private parties; (2) service of process on an international organization without the involvement of the Austrian Federal Ministry; and (3) any service of process on OPEC without the express consent of the Secretary General of OPEC. Freedom Watch was unable to distinguish the facts of Prewitt by arguing that in addition to serving OPEC by registered mail, it served OPEC’s purported agent.

The court also rejected an argument that OPEC was served through its law firm, White & Case, which is located in Washington, D.C. Freedom Watch did not file proof of service of process on OPEC’s attorneys with the court. Even if it had, OPEC never authorized White & Case to accept or receive service of process on its behalf. Absent such authorization, OPEC could not have been validly served through its counsel, the court noted.

The case is No. 12-731 (RBW).

Attorneys: Larry E. Klayman (Law Office of Larry Klayman) for Freedom Watch, Inc. Carolyn Beth Lamm (White & Case, LLP) for Organization of Petroleum Exporting Countries.

Companies: Freedom Watch, Inc.; Organization of Petroleum Exporting Countries.

Cases: Antitrust DistrictofColumbiaNews