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Brittingham v. Mobil Corp.

filed: August 23, 1991; As Amended August 30, 1991.

R. R. BRITTINGHAM, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
MOBIL CORPORATION AND MOBIL OIL CORPORATION D/B/A MOBIL CHEMICAL COMPANY, INC. R. R. BRITTINGHAM, APPELLANT IN 90-1989. MATTHEW D. ROAZEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED V. MOBIL CORPORATION, MOBIL OIL CORPORATION D/B/A MOBIL CHEMICAL COMPANY. MATTHEW D. ROAZEN, APPELLANT IN 91-1019. JACK DORF, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED V. MOBIL CORPORATION, MOBIL OIL CORPORATION D/B/A MOBIL CHEMICAL COMPANY. JACK DORF, APPELLANT IN 91-1025. BETH DUNNINGTON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED V. MOBIL CORPORATION BETH DUNNINGTON, APPELLANT IN 91-1034. S. A. PONCET-PITKOW, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED V. MOBIL CORPORATION S. A. PONCET-PITKOW, APPELLANT IN 91-1035. LEO GEIGER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED V. MOBIL CORPORATION, MOBIL OIL CORPORATION D/B/A MOBIL CHEMICAL COMPANY, INC. LEO GEIGER, APPELLANT IN 91-1041



On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil Action Nos. 90-03998, 90-04175, 90-04115, 90-04124, 90-04064, 90-04318.

Stapleton, Scirica and Aldisert, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge

The district court granted summary judgment to defendants on the ground that plaintiffs failed to assert valid claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968 (1988). We will affirm.

I.

In 1989, Mobil Chemical Company ("Mobil Chemical") began producing and marketing Hefty "degradable" garbage bags. Mobil Chemical is an unincorporated division of defendant Mobil Oil Corporation ("Mobil Oil"), which in turn is a wholly-owned subsidiary of defendant Mobil Corporation ("Mobil"). The degradable bags were advertised as being less harmful to the environment than other types of bags. The package in which the bags were sold contained the following statement:

New Hefty Degradable Trash Bags contain a special ingredient that promotes their breakdown after exposure to elements like sun, wind and rain.

This ingredient promotes degradation without harming the environment. Once these elements have triggered the process, the bags will continue to break down into harmless particles even after they are buried in a landfill. New Hefty Degradable Bags have the same strength and durability you've come to expect from Hefty, and you don't have to worry that they'll degrade sitting on your shelf or at the curb. These bags have been specially formulated so they're only activated by exposure to the elements. Hefty Degradable Bags -- a step in our commitment to a better environment.

Plaintiffs are individual consumers who purchased the bags. Plaintiffs contend that these claims were false and misleading "because the bags will not degrade after being placed in a modern landfill, and the plastic will not even 'break down' into 'harmless particles' but will simply break into smaller plastic particles." Complaint at 7-8. Similar allegations are also the subject of investigations by federal and state officials. Plaintiffs filed a class action suit in district court against Mobil and Mobil Chemical, alleging violations of RICO and asserting various pendent state law claims.*fn1 The RICO claims asserted violations of 18 U.S.C. § 1962(a) and § 1962(c), and were predicated on alleged acts of mail and wire fraud committed by defendants in marketing the degradable bags. The RICO claims are the sole basis for federal jurisdiction.

Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The district court did not rule on that motion, but directed the parties to conduct discovery on the limited issue of whether plaintiffs could demonstrate facts sufficient to sustain the RICO claims. Following this discovery, defendants filed a motion for summary judgment as to the RICO counts. The district court granted this motion and dismissed the remaining counts for lack of subject matter jurisdiction. This appeal followed.

We may affirm the grant of summary judgment only if "after considering the record evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). Our review is plenary. Id.

II.

Under 18 U.S.C. § 1964(c), any person injured in his business or property by reason of a violation of § 1962 may recover treble damages and attorney's ...


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