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2nd Chance for Antitrust Suit Against OPEC

     (CN) – A group accusing OPEC of fixing the price of gasoline deserves another chance at effecting service on the intergovernmental organization, the D.C. Circuit ruled.
     Conservative activist group Freedom Watch sued the Organization of the Petroleum Exporting Countries (OPEC) in 2012, alleging that the group violates U.S. antitrust law by fixing the price of gasoline.
     It attempted to effectuate service by hand-delivering a copy of the summons and complaint to OPEC headquarters in Vienna, Austria, but OPEC asserted that this means of service was invalid without the express consent of OPEC’s secretary general.
     A federal judge agreed with OPEC, dismissing the suit, and a three-judge panel with the D.C. Circuit affirmed Friday that Freedom Watch’s efforts did not count as service under Austrian law and were thus invalid.
     “Austria prohibits service of process on an international organization holding privileges and immunities under international law (which OPEC does) without the involvement of the Austrian Federal Ministry,” Judge Sri Srinivasan wrote for the court (parentheses in original). “In addition, the OPEC headquarters agreement, a part of Austrian law, bars service of legal process within the headquarters seat without the express consent of OPEC’s secretary general.”
     Freedom Watch should be allowed, however, to try to serve OPEC through its U.S. counsel, the law firm of White & Case, the court also found.
     “Even if service cannot be effectuated on OPEC through United States counsel without violating Austrian law, the district court could still authorize such service if it would ‘minimize’ offense to Austrian law,” Srinivasan said.
     The 20-page opinion emphasizes that “our decision to remand should not be mistaken for agreement with Freedom Watch that the district court must authorize some method of serving process on OPEC as a matter of due process, public policy, or enforcement of United States antitrust law. … But the district court must at least exercise its discretion under Rule 4(f)(3), which it can now do on remand.” (Emphasis in original.)
     Judge Robert Wilkins concurred that Freedom Watch’s personal service was invalid, but disagreed with the majority’s ruling that it might serve OPEC through counsel.
     “In my view, Freedom Watch did not invoke the exercise of that discretion in the District Court proceedings and so no question about it is properly before the Court here,” he said.

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