Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Korean noodle manufacture required to disclose former employees’ contact information, (Jan 22, 2016)

By Michael Menzhuber, J.D., LL.M.

A Korean manufacturer of ramen noodles, that was alleged to have engaged in price-fixing, was required to disclose contact information for three of its former employees by the federal district court in Oakland, California. The court determined that the doctrine of international comity applied to require disclosure (Fenerjian v. Nong Shim Company, Ltd., January 21, 2016, Ryu, D.).

In September 2013, Stephen Fenerjian and other purchasers brought a class action against Nong Shim Company and other Korean noodle manufacturers, alleging that the class had incurred damages in the form of artificially-inflated prices for Korean ramen noodle products, which resulted from a price-fixing conspiracy engaged in by the defendant companies. The direct purchaser plaintiffs (DPPs) in the litigation requested contact information for three former Nong Shim employees who attended certain ramen conferences in Korea, which the DPP’s contended were a vehicle for competitors to fix ramen noodle prices.

Nong Shim objected to providing the requested contact information on the basis that the Korean Personal Information Protection Act (PIPA) prohibited it from doing so without the consent of the individuals. The DPPs argued that Nong Shim should be required to turn over the contact information based on two theories: (1) Nong Shim waived any PIPA objection by agreeing to the terms of a May 2015 Stipulation and Order, which expressly discussed the treatment covered by PIPA; and (2) even if the stipulated order did not apply, the balance of the factors for analyzing the application of the doctrine of international comity weighed in favor of disclosure.

Stipulation and Order. The court determined that the parties’ intent to create a “legal obligation” through the Stipulation and Order to address PIPA concerns regarding the disclosure of personal information was irrelevant to the interpretation of PIPA. Further, the PIPA, which requires a data subject to consent to the release of personal information to a third-party overseas, does not provide an exception to comply with “legal obligations”.

Doctrine of international comity. The DPPs also argued that the doctrine of international comity applied to require Nong Shim to provide the requested contact information. After an analysis of the five competing factors for determining whether the doctrine of international comity applied, the court agreed.

While the court found that the factor, “origin and location of the information”, weighed against disclosure because the requested contact information was located in a foreign country, the other four factors weighed in favor of disclosure: (1) the three former employees, whose contact information were being requested, appeared to have percipient knowledge about alleged price-fixing in the Korean Market; (2) the DPPs requested very specific contact information; (3) there was no effective alternative method to track down the former employees since their first and last names were very common in Korea; and (4) the United States’ interest in disclosure in the antitrust litigation outweighed the privacy concerns articulated in the PIPA.

The case is No. 13-cv-04115 WHO (DMR).

Attorneys: Alan R. Plutzik (Bramson Plutzik Mahler & Birkhaeuser,) for Stephen Fenerjian. Anne Choi Goodwin (Squire Patton Boggs [US] LLP) for Nong Shim Co., Ltd. and Nongshim America, Inc. Joel Steven Sanders (Gibson, Dunn & Crutcher LLP) for Ottogi Co., Ltd. and Ottogi America, Inc. Elizabeth Dianne Mann (Mayer Brown LLP) for SamYang Foods Co., Ltd.

Companies: Nong Shim Co., Ltd; Nongshim America, Inc.; Ottogi Co., Ltd.; Ottogi America, Inc.; SamYang Foods Co., Ltd.

Cases: Antitrust CaliforniaNews