D'Agostino v. Johnson & Johnson, Inc.

Richard D’Agostino (plaintiff) was a United States citizen who resided in Switzerland. D’Agostino was employed by Cilag, a Swiss subsidiary of Johnson & Johnson, Inc. (defendant), a pharmaceutical manufacturer based in New Jersey. D’Agostino contended he was hired through the efforts of New Jersey-based Johnson & Johnson and its agents. D’Agostino was an at-will employee, and his contract stated it would be governed by Swiss law. Part of D’Agostino’s job was to register new Cilag products with Swiss authorities, which was a step toward obtaining approval for sale of the products in the United States. During the registration process, D’Agostino was instructed by a Swiss supervisor at Cilag to make a payment to a member of the regulatory agency involved in the registration process. D’Agostino refused to make the payment because he considered it a bribe. As a result, his employment was terminated. D’Agostino filed suit against Johnson & Johnson for wrongful termination in New Jersey state court. In the suit, D’Agostino contended that the order to make the payment, as well as his firing when he refused to do so, were orchestrated by Johnson & Johnson in New Jersey. The trial court granted partial summary judgment in favor of D’Agostino, applying New Jersey law, under which the payment would have been a violation of the Foreign Corrupt Practices Act (FCPA) and D’Agostino’s termination for refusal to make the payment would have been illegal. The appellate division reversed, applying Swiss law, under which the payment could be considered a proper consulting fee and D’Agostino’s termination would be lawful.