No. 10-1393 ~ .....................~

. rente gourt of nitel t tee

FAST BREAK FOODS LLC, et al.,

V.

Petitioners,

SAUDI ARABIAN OIL COMPANY,d]b/a Saudi Aramco, et al.,

Respondents.

On Petition for a Writ of Certiorari to the UnitedStates Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

SETH P. WAXMANPAUL R.Q. WOLFSONWILMER CUTLER PICKERING

HALE AND DOLOR LLP1875 PennsylvaniaAve., N.W.

Washington, D.C. 20006(202) 663-6000Counsel for RespondentsSaudi PetroleumInternational, Inc., AramcoServices Company, andSaudi Refining, Inc.

CAROLYN B. LAMMCounsel of Record

ANNE D. SMITHHANSEL T. PHAMJONATHAN C. ULRICHWHITE & CASE LLP

701 13th Street, N.W.Washington, D.C. 20005(202) 626-3600clamm@whitecase.comCounsel for RespondentsSaudi PetroleumInternational, Inc., AramcoServices Company, andSaudi Refining, Inc.

Additional counsel listed on inside cover

ROBERT A. MILNETHOMAS J. O’SULLIVANRAJ GANDESHAJOHN D. RUEWHITE & CASE LLP1155 Avenue of theAmericali

New York, NY 10036(212) 819-8200Counsel fc~r RespondentsSaudi PetroleumInternational, Inc., AramcoServices Company, andSaudi Refining, Inc.

PATRICIA A. MILLETTJAMES P. ~UITEC. FAIRLEY SPILLMANKEVIN 1~. AMERAKIN GUMP STRAUSS

HAUER &; FELD LLP1333 New HampshireAve., N.W.

Washington, D.C. 20036(202) 887-4000Counsel for RespondentsLukoil Americas Corp.,Getty Petroleum MarketingInc., and Lukoil PanAmericas LLC

NATHAN P. EIMERANDREW G. KLEVORNCHAD J. DOELLINGEREmmR STAHL KLEVORN &

SOLBERG LLP224 South Michigan Ave.Suite 1100Chicago, IL 60604(312) 692-1718Counsel for RespondentsCITGO Petroleum Corp.and PDV Midwest RefiningLLC

TOM MCNAMARADALE R. HARRISDAVIS GmU-m_M & STUBBS

LLP1550 17th Street, Suite 500Denver, CO 80202(303) 892-9400Counsel for RespondentsPDVAmerica Inc. and PDVHolding Inc. ~

MARK S. BERNSTEINSHERMIN KRUSEBARACK FERRAZZANO

KIRSCHBAUM &NAGELBERG LLP

200 West Madison StreetSuite 3900Chicago, IL 60606(312) 984-3100Counsel for RespondentMotiva Enterprises, LLC

QUESTIONS PRESENTED

1. Whether the Fifth Circuit’s decision thatpetitioners’ private antitrust complaint presents anonjusticiable political question is consistent withthe jurisprudence of this Court and other circuitcourts, where petitioners’ complaint requires a courtto pass judgment on foreign sovereigns’ decisionsconcerning the exploitation of their natural resourcesand where the Executive Branch of the U.S.government has explained that adjudication of suchclaims would improperly interfere with the UnitedStates’ national security and its conduct of foreignaffairs?

2. Whether the Fifth Circuit’s alternativeholding--that the act of state doctrine requireddismissal of the complaint because the complaintwould require adjudicating the legality of foreignsovereigns’ decisions to exploit sovereign-ownednatural resources~s consistent with thejurisprudence of this Court and other circuit courts?

ii

PARTIES TO THE PROCEEDING

Petitioners are Fast Break Foods LLC, Green OilCo., Countywide Petroleum Co., and Central OhioEnergy, Inc.

Respondents are Saudi Petroleum International,Inc., Aramco Services Company, Saudi Refining, Inc.,PDV America, Inc., CITGO Petroleum Corporation,PDV Holding, Inc., PDV Midwest Refining, LLC,Lukoil Americas Corporation, Lukoil Pan AmericasLLC, Getty Petroleum Marketing, Inc., and MotivaEnterprises, LLC.1

I Petitioners list the Saudi Arabian Oil Company (Saudi

Aramco) as the lead respondent in their case caption. The FifthCircuit noted that the Saudi Arabian Oil Company (SaudiAramco), Petr61eos de Venezuela, S.A., OAO Lukoil and LukoilInternational Trading and Supply Company were named butnot served with process in the district court proceedingl andtherefore not parties to the appeal. See Pet. App. 7a n.6. Theseunserved entities, which have reserved all immunities, rightsand defenses, thus are not parties to this proceeding.

o,o111

CORPORATE DISCLOSURE STATEMENT

Saudi Petroleum International, Inc., AramcoServices Company, and Saudi Refining, Inc. arewholly-owned subsidiaries of the Saudi Arabian OilCompany (Saudi Aramco), which is wholly owned bythe Government of the Kingdom of Saudi Arabia.

PDV Holding, Inc. is a wholly owned subsidiaryof PetrSleos de Venezuela, S.A., a corporation whollyowned by the government of Venezuela. PDVAmerica, Inc. is a wholly owned subsidiary of PDVHolding, Inc. CITGO Petroleum Corporation andPDV Midwest Refining, LLC are wholly ownedsubsidiaries of PDV America, Inc.

Lukoil Americas Corporation and Lukoil PanAmericas LLC are indirect, wholly ownedsubsidiaries of OAO Lukoil, a publicly held companythat trades on the London Stock Exchange. GettyPetroleum Marketing Inc. is wholly owned byCambridge Petroleum Holding, Inc., a privately heldDelaware corporation.

Motiva Enterprises, LLC is owned fifty percentby Saudi Refining, Inc. and fifty percent by Shell OilCompany, Inc.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

PARTIES TO THE PROCEEDING ............................ii

CORPORATE DISCLOSURE STATEMENT ...........iii

TABLE OF AUTHORITIES ......................................vi

STATEMENT OF THE CASE ....................................1

A. District Court Proceedings ...............................2

B. Proceedings In The Court Of Appeals .............4

REASONS FOR DENYING THE PETITION ............8

A. The Lower Courts’ Unanimous ConstructionOf The Complaint Does Not Warrant ThisCourt’s Review .................................................. 8

B. The Fifth Circuit’s Political Question Ruling IsConsistent With Decisions Of This Court AndOther Courts Of Appeals ................................ 10

1. The Decision Below Does Not Conflict WithThis Court’s Precedents ...............................10

2. There Is No Conflict With Other Circuits.. 15

C. The Fifth Circuit’s Decision Regarding TheAct of State Doctrine Is Consistent WithDecisions Of This Court And Other Courts OfAppeals ........................................................... 17

V

1. The Decision Below Does Not Conflict WithThis Court’s Precedents ............................... 17

2. There Is No Conflict With Other Circuits .. 21

CONCLUSION ..........................................................24

vi

TABLE OF AUTHORITIES

Page(s)

CASES

Airline F~lots Ass’n v. TACA Int’l Airlines, S.A.,748 F.2d 965 (5th Cir. 1984) .........................23

Alfred Dunhill of London, Inc. v. Republic of Cuba,425 U.S. 682 (1976) ..................................19, 20

Allied Bank Int’l v. Banco Credito Agricola,757 F.2d 516 (2d Cir. 1985) ............................23

Arango v. Guzman Travel Advisors Corp.,621 F.2d 1371 (5th Cir. 1980) ........................23

Argentina v. Weltover, Inc., 504 U.S. 607 (1992) .....19

Austria v. Altmann, 541 U.S. 677 (2004) .................20

Baker v. Carr, 369 U.S. 186 (1962) .................4, 10, 11

Banco Nacional de Cuba v. Sabbatino,376 U.S. 398 (1964) ........................................18

Bank of the U.S. v. Planters" Bank of Ga.,22 U.S. 904 (1824) ..........................................19

Bell Atlantic Corp. v. Twombly,55(} U.S. 544 (2007) ......................................6, 9

Black v. Cutter Laboratories, 351 U.S. 292 (1956)... 18

Braka v. J~ancomer, S.N.C.,762 F.2d 222 (2d Cir. 1985) ............................21

California v. Rooney, 483 U.S. 307 (1987) ...............18

Chatham Condo. Ass’ns v. Century Village, Inc.,597 F.2d 1002 (5th Cir. 1979) ........................16

vii

First National City Bank v. Banco Nacional de Cuba,406 U.S. 759 (1972) ..................................18, 19

Glen v. Club Mdditerrande, S.A.,450 F.3d 1251 (llth Cir. 2006) ......................21

Globe Nuclear Serv. v. AO Techsnabexport,376 F.3d 282 (4th Cir. 2004) ..........................24

Gough v. Rossmoor Corp.,487 F.2d 373 (9th Cir. 1973) ..........................16

Gross v. German Found. Indus. Initiative,456 F.3d 363 (3d Cir. 2006) ............................22

Guevara v. Peru, 468 F.3d 1289 (llth Cir. 2006) ....23

Indus. Inv. Dev. Corp. v. Mitsui & Co., Ltd.,594 F.2d 48 (5th Cir. 1979) ............................15

Int’l Ass’n of Machinists v. OPEC,649 F.2d 1354 (9th Cir. 1981) .................. 21, 22

Int’l Bancorp, L.L.C. v. Socidtd des Bains de Mer,329 F.3d 359 (4th Cir. 2003) ..........................16

Japan Whaling Ass’n v. Am. Cetacean Soc’y,478 U.S. 221 (1986) ............................. 10, 11-12

Jones v. Petty Ray Geophysical Geosource, Inc.,722 F. Supp. 343 (S.D. Tex. 1989), aff’d,954 F.2d 1061 (5th Cir. 1992) ........................24

Kalamazoo Spice Extraction v. Provisional MilitaryGov’ t of Socialist Ethiopia,729 F.2d 422 (6th Cir. 1984) ..........................21

Lamb v. Phillip Morris, Inc.,

915 F.2d 1024 (6th Cir. 1990) ..................22, 23

Lehrman v. Gulf Oil Corp.,464 F.2d 26 (Sth Cir. 1972) ............................16

Miss. Poultry Ass’n v. Madigan,992 F.2d 1359 (5th Cir. 1993) ........................16

Northrop Corp. v. McDonnell Douglas Corp.,705 F.2d 1030 (9th Cir. 1983) ........................15

N.Y.v.U.S., 326 U.S. 572 (1946) .........................19-20

Samantar v. Yousuf, 130 S. Ct. 2278 (2010) ............20

Sharon v. Time, Inc., 599 F. Supp. 538(S.D.N.Y. 1984) .........................................23, 24

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ........13

Spectrum Stores, Inc. v. CITGO Petroleum Corp.,petition for cert. filed, 79 U.S.L.W. 3662(U.S. May 5, 2011) (No. 10-1371) .....................2

Underhill v. Hernandez, 168 U.S. 250 (1897) ......3, 18

U.S. v. Cargo Serv. Stations, Inc.,657 F.2d 676 (5th Cir. 1981) ..........................16

U.S. v. Guy W. Capps, Inc., 204 F.2d 655(4th Cir. 1953), all’d, 348 U.S. 296 (1955) .....16

Vanity Fair Mills, Inc. v. T. Eaton Co., Ltd.,234 F.2d 633 (2d Cir. 1956) ............................16

Verlinden, B.V. v. Cent. Bank of Nigeria,461 U.S. 480 (1983) ........................................20

Vieth v. 3hbelirer, 541 U.S. 267 (2004) ..............10, 11

Walter Fuller Aircraft Sales, Inc. v. Phil.,965 F.2d 1375 (5th Cir. 1992) .........................22

Williams v. Curtiss-Wright Corp.,694 F.2d 300 (3d Cir. 1982) ......................21, 23

World- Wide Minerals, Ltd. v. Kazakhstan,296 F.3d 1154 (D.C. Cir. 2002) .....................21

ix

W.S. Kirkpatrick & Co., Inc. v. EnvironmentalTectonics Corp., Int’l,493 U.S. 400 (1990) .................. 3, 17, 18, 19, 22

Zivotofsky v. Sec’y of State, 571 F.3d 1227(D.C. Cir. 2009), reh’g denied, 610 F.3d 84(D.C. Cir. 2010), cert. granted, 79 U.S.L.W.3344 (U.S. May 2, 2011) (No. 10-699) ....... 11-12

STATUTES

28 U.S.C. § 517 ............................................................5

OTHER AUTHORITIES

Eugene Gressman et al., Supreme Court Practice(BNA 9th ed. 2008) .........................................10

No Oil Producing and Exporting Cartels Act(NOPEC), S. 394, ll2th Cong. (2011) ............14

NOPEC, H.R. 1346, ll2th Cong. (2011) ..................14

NOPEC, S. 204, 111th Cong. (2009) .........................14

NOPEC, S. 879, ll0th Cong. (2007) .........................14

NOPEC, H.R. 2264, ll0th Cong. (2007) ..................14

Restatement (Third) of the Foreign Relations Law ofthe United States § 206 (1986) .................................19

United Nations General Assembly Res. 1803,17 U.N. GAOR, 2d Comm. 327, U.N. Doc. A/C2/5 R 850 (Dec. 14, 1962) ................................ 19

Blank Page

the Supreme Cout’t of the Uniteb State

No. 10-1393

FAST BREAK FOODS LLC, et al.,

Petitioners,

V.

SAUDI ARABIAN OIL COMPANY,

d/b/a Saudi Aramco, et al.,Respondents.

On Petition for a Writ of Certiorari to the UnitedStates Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

This case arises from a consolidated complaint inwhich petitioners charged the defendants withparticipating in a conspiracy to fix the price of crudeoil and refined petroleum products sold in the UnitedStates. Specifically, as both lower courts found,petitioners’ consolidated complaint alleges a price-fixing conspiracy implemented through agreementsbetween the defendants and foreign sovereigngovernments to restrain the output of crude oil

2

production within those foreign states.2 Althoughpetitioners chose not to name the sovereign nationsas defendants, at bottom their complaint rests onactions taken by those nations to regulate theexploitation of their natural resources.

A. District Court Proceedings

Defendants jointly moved to dismiss theconsolidated complaint on several grounds, includingthe act o1[" state and political question doctrines.3

Fifteen foreign governments appeared as amicicuriae in district court to explain the governmentaland sovereign nature of their decisions regardingnatural resource (crude oil) development and theprofound foreign relations implications ofadjudicating the claims in this case.4

2 Both the district court and Fifth Circuit considered

petitioners’ complaint together with a separate complaint,which is the subject of the petition in Spectrum Stores, Inc. v.CITGO Petroleum Corp., petition for cert. filed, 79 U.S.L.W.3662 (U.S. May 5, 2011) (No. 10-1371).

3 "Defendants" in this brief refers to the served defendants:

Aramco Services Company, Saudi Petroleum International,Inc., Saudi Refining, Inc., Motiva Enterprises LLC, PDVAmerica, Inc., CITGO Petroleum Corporation, PDV Holding,Inc., PDV Midwest Refining, LLC, Lukoil AmericasCorporation, Lukoil Pan Americas LLC, and Getty PetroleumMarketing, Inc. See Pet. App. 7a n.6.

4 The following foreign sovereign nations submitted amicus

curiae briefs in the district court: Algeria; Angola; Ecuador;Indonesia; Iraq; Kuwait; Libya; Mexico; Nigeria; Norway;Qatar; the ]Russian Federation; Saudi Arabia; the United A~rabEmirates; and Venezuela. In addition, the U.S. Chamber ofCommerce submitted an amicus curiae brief warning of the

3

The district court dismissed the complaints,holding that they were barred by the act of state andpolitical question doctrines. The court read thecomplaints--which concede that crude oil is theprimary component of the price of refined petroleumproducts--as plainly challenging the crude oilproduction decisions of foreign sovereign nationsbecause those production decisions were essentialaspects of the conspiracy alleged in the complaints:"[W]here the Consolidated Complaint alleges specificfacts, those facts show that the antitrust conspiracyfor which the plaintiffs seek redress is an antitrustconspiracy * * * that consists of agreements enteredby foreign sovereign states to limit their productionof crude oil." Pet. App. 64a. The court found "nofactual allegations from which the court couldplausibly conclude that collusive activity by thenamed defendants alone fixed the price of [refinedpetroleum products] sold in the United States." Id. at75a

Applying this Court’s decisions in Underhill v.Hernandez, 168 U.S. 250 (1897), and W.S.Kirkpatrick & Co., Inc. v. Environmental TectonicsCorp., Int’l, 493 U.S. 400 (1990), the district courtfirst held that the act of state doctrine barred thelitigation. Pet. App. 86a, 92a. Citing the specificlanguage of the complaint, the court found that,although it was "artfully worded to limit reference toactions performed by sovereign members of theconspiracy," the "allegations in the * * * Complaint

adverse effects to U.S. economic interests abroad and foreigninvestment in the United States that could result if the caseswere allowed to proceed.

4

show that the price-fixing with respect to [refinedpetroleur~t products] sold in the United States ofwhich [petitioners] complain is, in fact, caused by theproduction decisions of the conspiracy’s sovereignmembers." Id. at 62a-63a.

As an alternative ground, the court, applying thetest set out in Baker v. Carr, 369 U.S. 186 (1962),held that petitioners’ claims are nonjusticiable underthe political question doctrine. The court stressedthat adjudication of the claims would "express a lackof respect for the Executive Branch because of itslongstanding foreign policy that issues relating tocrude oil production by foreign sovereigns be resolvedthrough intergovernmental negotiation." Pet. App.89a.

Petitioners did not seek reconsideration of thetrial court~’s construction of their complaint, nor didthey seek leave to amend it. Instead, they appealedthe decision to the Fifth Circuit.

B. Proceedings In The Court Of Appeals

Eleven foreign nations filed briefs amici curiaewith the Fifth Circuit supporting affirmance andunderscoring that adjudication of this case on themerits would undermine a long history of diplomaticand foreign relations efforts relating to internationalenergy policies. Pet. App. 14a n.ll.~ After oralargument:, the court requested a "Statement of

5 The Fifth Circuit granted the following foreign nations leave

to file as amici curiae: Algeria; Indonesia; Iraq; Kuwait; Mexico;Nigeria; Qatar; the Russian Federation; Saudi Arabia; theUnited Arab Emirates; and Venezuela.

5

Interest" from the United States pursuant to 28U.S.C. § 517 (2006). The government responded withan amicus curiae brief filed on behalf of theDepartments of State, Treasury, Energy, andJustice. See Brief of the United States as AmicusCuriae Supporting Affirmance, Spectrum Stores, Inc.v. CITGO Petroleum Corp., 632 F.3d 938 (5th Cir.2011) (No. 09-20084), available at PACER.6 TheUnited States agreed with the district court that thecomplaints were properly read as challenging thedecisions of foreign sovereign nations to limitproduction of crude oil within their territories, andthat the legality of these decisions could not beadjudicated under the antitrust laws consistent withthe act of state doctrine. Id. at 26. The governmentalso agreed that the claims set forth in thecomplaints presented nonjusticiable politicalquestions, because adjudication would directlyinterfere with the constitutional authority of theExecutive Branch to manage this country’s complexrelations with oil-producing nations throughnegotiation and diplomacy. Id. at 56-57. The UnitedStates warned that granting the relief requested inthe complaints could lead to serious adverseconsequences for national security and foreignaffairs. Id. at 3.7

~ https://ecf.ca5.uscourts, gov/cmecf/servlet/TransportRoom?servlet=ShowDocMulti&d=6605599&pacer=i&caseId= 112949&incPdfFooter=&outputType=doc&outputForm=view.

7 See also id. at 36 ("The possible consequences of judicial action

in this sensitive area include oil embargoes, divestiture bycertain foreign states of assets in the United States, retaliatoryconduct by foreign states of assets in the United States,retaliatory conduct by foreign states against American oil

6

In a unanimous decision, the court of appealsaffirmed. The court began by observing that theparties "vigorously contest whether the district courtcorrectly portrayed the factual allegations of thecomplaint." Pet. App. 14a. After a careful review, thecourt of appeals agreed with the district court that"the core of the alleged conspiracy" in petitioners’complaint "consists of agreements entered into byforeign sovereign states to limit production of crudeoil." Id. at 15a. Moreover, the court held, theallegation of a conspiracy independent of thosesovereign nations contained only "conclusorylanguage" that failed to meet the standards of BellAtlantic Corp. v. Twombly, 550 U.S. 544 (2007). Pet.App. 17a. The court accordingly concluded that theamended complaint "fails plausibly to allege aconspiracy based on refining agreementsindependent from the broader production-orientedconspiracy." Id.

Turning to the political question doctrine, thecourt of appeals carefully reviewed this Court’sdecisions from Baker to the present. Pet. App. 18a-21a. Applying this settled precedent, the courtexplained that adjudication would require an inquiryinto whether respondents entered into a price fixingconspiracy with OPEC nations, and thus apronouncement on the legality of foreign sovereignactions. Such a pronouncement, the courtexplained "either way"--falls "within the realm ofdelicate foreign policy questions" that are textually

producers, and reduction in cooperation on unrelated issues ofimmense public importance to the United States.").

committed under the Constitution to the politicalbranches of government. Id. at 23a-24a.

The court further noted that petitioners’complaint seeks "nothing short of the dismantling ofOPEC and the inception of a global market thatoperates in the absence of agreements betweensovereigns as to the supply of a key naturalresource." Id. at 26a-27a. The court held that theSherman and Clayton Acts "are decidedly inadequateto provide judicially manageable standards forresolving such momentous foreign policy questions."Id. at 27a. The court’s conclusion that litigation ofthe claims presented was foreclosed by the politicalquestion doctrine was reinforced by the UnitedStates’ concerns, with which the court of appealsagreed, that adjudication would conflict with theExecutive Branch’s longstanding approach tomanaging relations with oil-producing nationsthrough diplomacy rather than through privatelitigation. Id. at 28a.

With respect to the act of state doctrine, thecourt of appeals ruled that adjudication of thecomplaint would necessarily draw into question thelegality of the actions of sovereign oil-producingstates within their own territories. Id. at 32a-33a.Thus, it concluded, "It]he granting of any relief’ topetitioners "would effectively order foreigngovernments to dismantle their chosen means ofexploiting the valuable natural resources withintheir sovereign territories." Id. at 33a. Accordingly,dismissal was required under the act of statedoctrine as well.

8

REASONS FOR DENYING THE PETITION

Petitioners’ entire argument is predicated on areading of their complaint that four out of fourjudges have flatly rejected, not on any broad orimportant question of law for this Court to resolve.Although petitioners contend that their complaintalleges a conspiracy independent of decisions madeby sovereign nations about the appropriateregulation of their natural resources, both lowercourts disagreed and concluded that the complaintmakes such sovereign decisions the heart of thealleged conspiracy. That case-specific question ofwhether the courts below were correct in theirconsistent reading of this complaint does not meritthis Court’s review.

The court of appeals’ decision, moreover, does notconflict with any of this Court’s decisions or with anyother courts of appeals’ decision. This Court’s reviewis therefore not warranted.

Ao The Lower Courts’ UnanimousConstruction Of The ComplaintDoes Not Warrant This Court’sReview

Throughout their petition, petitioners advancecharacterizations of their amended complaint thatare at odds with the plain language of theircomplaint’s allegations and the straightforwardreading of those allegations adopted by the districtcourt and the unanimous Fifth Circuit. Those courtsconsistently concluded, after a "vigorous[] contest"among the parties about the proper construction ofthe complaint, that "the core of the alleged

9

conspiracy * * * consists of agreements entered intoby foreign sovereign states to limit production ofcrude oil." Pet. App. 14a-15a.

Petitioners repeatedly characterize all fourjudges’ conclusions as "erroneous." See, e.g., Pet. 27,33. Their Statement of the Case asserts as fact thattheir lawsuit questions only whether "captivecorporations" of foreign sovereigns "can be sued whenthey engage in price fixing in the production and saleof their products in the private United Statesmarket," Pet. 13-14, and that the issues their lawsuitpresents "relate only to commercial operations of oilcompanies acting in and directly affecting U.S.commerce," id. at 15. These assertions contradict theconclusions of the district court and the court ofappeals about the allegations of the complaint. Pet.App. 64a, 15a-16a.

Yet petitioners’ assertions about the appropriateconstruction of their complaint are the essentialpredicate for their arguments for certiorari. Thequestions petitioners presented could not be resolvedwithout this Court first overturning both lowercourts’ reading of the complaint.

Petitioners, however, have not set forth achallenge to the interpretation of their complaint asone of the Questions Presented. Pet. i.s Even if theyhad, such fact-bound questions about the proper

s Petitioaers also have not presented any basis for this Court to

review the conclusions of both lower courts that the allegationsof the complaint, if taken to exclude the production decisions offoreign sovereign nations, lack the necessary specificity towithstand a motion to dismiss under Twombly. Pet. App. 17a,75a.

10

reading of pleadings would not be worthy of reviewby this Court.9

The Fifth Circuit’s PoliticalQuestion Ruling Is Consistent WithDecisions Of This Court And OtherCourts Of Appeals

The Decision Below Does NotConflict With This Court’sPrecedents

Underscoring the petition’s lack ofcertworthiness is petitioners’ failure to identify anypolitical question holding of this Court that conflictswith the Fifth Circuit’s ruling. Unable to escape thecomplaint-specific nature of their arguments,petitioners argue that the Fifth Circuit’s applicationof settled, case law to the facts of this case wasmistaken° That does not merit this Court’s revieweither.

Petitioners make only passing reference toBaker, 369 U.S. 186; Vieth v. Jubelirer, 541 U.S. 267(2004); and Japan Whaling Association v. AmericanCetacean Society, 478 U.S. 221 (1986), and make noshowing at all of a conflict between the decisionbelow and those prior rulings. Indeed, there is nosuch confl.ict.

The Fifth Circuit faithfully applied this Court’spolitical question precedents. The court closely

9 E.g., Eugene Gressman etal., Supreme Court Practice 276

(BNA 9th ed. 2008) ("It has been reiterated many times that theSupreme Court is not primarily concerned with the correction oferrors in lower court decisions.").

11

followed the "seminal" six-factor test set forth inBaker, finding that all six factors were present andrequired dismissal. Pet. App. 20a-29a. The court alsofollowed Baker’s observation that cases implicatingforeign relations require a "discriminating analysisof the particular question posed, in terms of thehistory of its management by the political branches,of its susceptibility to judicial handling * * *, and ofthe possible consequences of judicial action." Pet.App. 20a-21a (quoting Baker, 369 U.S. at 211-12);Pet. App. 20a (further noting pronouncement inVieth that Baker factors are "six independent testsfor the existence of a political question" (quotingVieth, 541 U.S. at 277)).

The court of appeals explained that JapanWhaling bears little resemblance to this case becausepetitioners’ case does not "present ’a purely legalquestion of statutory interpretation,’" and seeks tosubject the conduct of foreign sovereign nations tonorms of U.S. law. Pet. App. at 22a-23a (quotingJapan Whaling, 478 U.S. at 230). By contrast, JapanWhaling involved a challenge to the manner in whichUnited States officials had interpreted a UnitedStates statute compelling the Executive Branch toenforce certain treaty quotas against foreignnations.10 Moreover, in the statute at issue in Japan

lo Similarly, this case bears no resemblance to Zivotofsky v.

Sec’y of State, 571 F.3d 1227 (D.C. Cir. 2009), reh’g denied, 610F.3d 84 (D.C. Cir. 2010), cert. granted, 79 U.S.L.W. 3344 (U.S.May 2, 201t) (No. 10-699), a political question case thatinvolves a statute specifically directing Executive Branch actionwith respect to the endorsement of passports for Americansborn in Jerusalem. Given these differences, along with thealternative and equally dispositive ground for dismissal here

12

Whaling, Congress had specifically required theExecutive Branch, in certain defined circumstances,to certify foreign nations and then to imposesanctions for violations of quotas set forth in a treatyto which the President had agreed. Thus, bothpolitical branches--the Executive in agreeing to thetreaty quotas, and Congress in enacting thestatute--necessarily had considered the implicationsof treaty implementation and enforcement for foreignsovereign interests and sensitivities. The court’senforcement of the statute did not intrude on thisprerogative of the political branches. Here, bycontrast, no such considerations were weighed inconnection with enactment of the Sherman Act, andindeed neither political branch has ever applied U.S.antitrust laws to foreign sovereign conduct in theway petitioners seek.

Petitioners’ recitation of decisions relatinggenerally to Congress’s commerce powers and thescope of the Sherman Act--none involving thepolitical question doctrine (Pet. 22-25)--does nothingto help their cause. As the court of appeals explained,the political-question concerns raised by petitioners’complaint have nothing to do with the scope ofCongress’s power to delimit the reach of theSherman Act, but rather with petitioners’ attempt to"couch the conduct of foreign relations and nationalsecurity policy in antitrust terms." Pet. App. 27a.The Fifth Circuit’s conclusion that adjudication ofpetitioners’ claims would inevitably involve thejudiciary in critical matters of foreign policy,

under the act of state doctrine, there is no reason to hold thispetition for the Zivotofsky case.

13

international energy policy, national security, andmilitary affairs exclusively committed to the politicalbranches remains entirely consistent with thisCourt’s political question precedents.

This is only underscored by the arnicussubmissions in the court of appeals of eleven foreignsovereigns and the United States. As the UnitedStates explained, seven different administrations--from President Nixon to President Obama--haveconcluded that assuring an adequate supply of crudeoil from the member states of OPEC and otherforeign nations requires the exercise of diplomacy,not litigation. U.S. Brief at 4-5. Adjudication would"seriously complicate relations with those foreignstates that control most of the world’s proven oilreserves and that supply the United States with asubstantial fraction of the oil critical to our energyneeds, our national security, and our domesticeconomy." Id. at 36. The Fifth Circuit gave "seriousweight" to this Statement of Interest, Pet. App. 24an.14 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692,733 n.21 (2004)), and recognized that these concernsrequired dismissal, since a pronouncement on themerits "either way" would intrude on the diplomaticefforts of the Executive. Pet. App. 23a-24a.

Petitioners’ suggestion that the position of theExecutive Branch must be counterbalanced againstthat of Congress, which has purportedly spokenthrough the enactment of the Sherman Act, has nopurchase here. The Sherman Act has never beenapplied, in either a case brought by the UnitedStates or in private litigation, to cover decisions offoreign sovereign nations regarding the proper rateof extraction of their natural resources. And although

14

legislation has been introduced in Congress in recentyears to extend the antitrust laws in such a manner,that legislation has not been enacted.11

In fact, the Fifth Circuit found that officialExecutive statements opposing such legislation,along with the United States’ amicus brief, bothreflected the Executive Branch’s longstandingposition against litigating such critical and sensitivematters. Pet. App. 24a. Further, the court ruled thatCongress’s exclusion of any private right of actionfrom the proposed legislation indicated "an apparentpolitical consensus that private litigation is to beavoided," thus reinforcing the court’s adherence tothe "political decision" that "[r]elations with OPECnations regarding U.S. oil supplies are not to beconducted through private litigation." Id. at 29a n. 15.

Ultimately, petitioners’ argument is not that theFifth Circuit departed from the analysis required bythis Court’s political question decisions, but that"Baker and its progeny should be revisited by theCourt and. either clarified or reexamined" in order tofacilitate private treble damages actions involvingforeign sovereign resource decisions. Pet. 20. Butpetitioner,s point to nothing to suggest that thepolitical question doctrine requires such wholesalereexamination. And petitioners’ complaint, whichwould thrust the courts directly into sensitive

1~ See, e.g., No Oil Producing and Exporting Cartels Act

(NOPEC), S. 394, ll2th Cong. (2011); NOPEC, H.R. 1346,ll2th Cong. (2011); NOPEC, S. 204, lllth Cong. (2009);NOPEC, S. 879, ll0th Cong. (2007); NOPEC, H.R. 2264, ll0thCong. (2007}.

15

diplomatic matters, provides no occasion for thisCourt to do so.

2. There Is No Conflict WithOther Circuits

Further underscoring the petition’s lack ofcertworthiness is the absence of even a pretense of acircuit split on the political question doctrine.

Petitioners cite two decisions in the antitrustcontext that purportedly touch on the politicalquestion doctrine. Petitioners concede, however, thatthose cases involved fundamentally differentcircumstances. Id. at 21-22. Neither involved claimschallenging the conduct of foreign nations orsensitive foreign relations concerns inextricablyintertwined with such sovereign conduct. Rather,Industrial Investment Development Corp. v. Mitsui &Co., Ltd., 594 F.2d 48, 49 (5th Cir. 1979)--which wasdecided solely on act of state, not political question,grounds--specifically held that "neither the validityof [Indonesian] regulations nor the legality of thebehavior of the Indonesian government is in questionhere." Likewise, Northrop Corp. v. McDonnellDouglas Corp., 705 F.2d 1030, 1047 (9th Cir. 1983),involved a commercial dispute between twoAmerican defense contractors which did "notchallenge the wisdom or legality of any governmentalact or decision." Neither case had the potential toembroil the United States in political conflict withforeign nations that this case has. And in neithercase did the Court have before it amicus briefs filedby the United States and foreign sovereigns, allstrongly voicing the sensitive foreign relations and

16

national security interests at stake. Pet. App. 14an.ll.

Petitioners resort to decisions that do not involvethe political question doctrine at all, but rathergeneral propositions like Congress’s broad authorityto regulate commerce, see Vanity Fair Mills, Inc. v. T.Eaton Co., Ltd., 234 F.2d 633, 641 (2d Cir. 1956);Congress’s constitutionally assigned power toregulate commerce with foreign nations, see Int’lBancorp, L.L.C. v. Socidtd des Bains de Mer, 329 F.3d359, 367-68 (4th Cir. 2003); U.S.v. Guy W. Capps,Inc., 204 F.2d 655, 658-60 (4th Cir. 1953), all’d, 348U.S. 296 (1955); the Executive’s duty not to subvertthe policy established by Congress, see Miss. PoultryAss’n v. Madigan, 992 F.2d 1359, 1365 (5th Cir.1993); and Congress’s intent to extend theprohibitions of the Sherman Act to the farthestreaches of the Commerce Clause, see U.S.v. CargoServ. Stations, Inc., 657 F.2d 676, 679 (5th Cir.1981); Chatham Condo. Ass’ns v. Century Village,Inc., 597 F.2d 1002, 1006-07 (5th Cir. 1979); Goughv. Rossmoor Corp., 487 F.2d 373, 376 (9th Cir. 1973);Lehrman v. Gulf Oil Corp., 464 F.2d 26, 34 (5th Cir.1972).

None of those cases remotely suggests a conflictin the circuits. Nor does the Fifth Circuit’s decisiondepart from any of those general principles in anyrespect. The opinion below in no way questionsCongress’s constitutional authority to regulateforeign commerce, and as the Fifth Circuit noted,there is no conflict between the Executive andLegislative branches with respect to the adjudicationof this particular case. Pet. App. 29a n.15.

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Co The Fifth Circuit’s DecisionRegarding The Act of StateDoctrine Is Consistent WithDecisions Of This Court And OtherCourts Of Appeals

The Decision Below Does NotConflict With This Court’sPrecedents

The Fifth Circuit’s alternative ground foraffirmance based on the act of state doctrine fullycomports with this Court’s precedents. Petitionersargue that the Fifth Circuit ignored this Court’sexposition of the act of state doctrine in Kirkpatrick,493 U.S. at 404-10, and claim that it reverted insteadto a pre-Kirkpatrick analysis that asks whetheradjudication of the dispute would "impugn[] themotivations of a foreign state." Pet. 27-30 (internalquotation omitted).

Petitioners are mistaken: the decision below isfully consistent with Kirkpatrick. The Fifth Circuitconcluded that because petitioners "allege aconspiracy that is orchestrated by the sovereignmember nations of OPEC," Pet. App. 34a,adjudication of the case necessarily would require adetermination whether the crude oil productiondecisions of OPEC nations violate the Sherman Act.Id. at 33a-34a. It held that granting any relief topetitioners "would effectively order foreigngovernments to dismantle their chosen means ofexploiting the valuable natural resources withintheir sovereign territories." Id. at 33a. Thus the courtof appeals applied the threshold act of state inquirythat Kirkpatrick reaffirmed: "In every case in which

18

we have held the act of state doctrine applicable, therelief sought or the defense interposed would haverequired a court in the United States to declareinvalid the official act of a foreign sovereignperformed within its own territory." 493 U.S. at 405.

To be sure, the Fifth Circuit did not citeKirkpatrick, but that is irrelevant. "This Court’reviews judgments, not statements in opinions."’California v. Rooney, 483 U.S. 307, 311 (1987)(quoting Black v. Cutter Laboratories, 351 U.S. 292,297 (1956)). Moreover, the court of appeals quotedand relied upon Underhill, 168 U.S. 250; BancoNacional de Cuba v. Sabbatino, 376 U.S. 398 (1964);and First National City Bank v. Banco Nacional deCuba, 406 U.S. 759 (1972)--foundational decisionsthat Kirkpatrick in turn cited and relied upon. 493U.S. 404-06. And the district court’s decision, whichthe court of appeals affirmed, quoted extensivelyfrom Kirkpatrick and concluded that Kirkpatrickrequired dismissal of the action here. Pet. App. 51a-57a, 68a, 71a, 74a, 86a. There can be no seriouscontention that the court of appeals disregarded theact of state principles articulated in Kirkpatrick.

Moreover, at no point did the Fifth Circuitsuggest that it was concerned merely about"impugning" the motivations of OPEC nations or"embarrassing" foreign governments--whichKirkpatrick indicated were inappropriate grounds totrigger the act of state doctrine. 493 U.S. at 409.Rather, the Fifth Circuit noted the separation ofpowers foundation for the act of state doctrine, i.e.,that ’"juridical review of acts of state of a foreignpower could embarrass the conduct of foreignrelations by the political branches of government.’"

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Pet. App. 30a (quoting First Nat’l City Bank, 406U.S. at 765). Kirkpatrick relies upon that samejurisprudential foundation. 493 U.S. 404.

Petitioners also contend that the decision belowconflicts with Alfred Dunhill of London, Inc. v.Republic of Cuba, 425 U.S. 682, 695 (1976), becauseit failed to recognize a "commercial activity"exception to the act of state doctrine. Pet. 30-33.That is wrong for two reasons.

First, as both the district court and the court ofappeals made clear, petitioners’ complaint requiresadjudication of the legality of inherently sovereignstate acts, and so this case involves sovereign--notcommercial--activity. Pet. App. 31a, 86a. These actshave been recognized to be inherently sovereignunder international law as well.12 Thus this casedoes not even raise the question whether acommercial activity exception to the act of statedoctrine should be recognized. The cases petitionerscite, by contrast, involve the exercise of jurisdictionby federal courts over domestic or foreign stateentities that were acting in a commercial capacity.See Bank of the U.S. v. Planters’Bank of Ga., 22 U.S.904, 907 (1824) (bank was not exempt from suit infederal court because the state of Georgia held anownership interest); N.Y.v.U.S., 326 U.S. 572 (1946)(federal government could assess taxes on NewYork’s sale of mineral waters); Argentina v. WeItover,Inc., 504 U.S. 607 (1992) (foreign state’s issuance of

,2 See, e.g., United Nations General Assembly Res. 1803, 17

U.N. GAOR, 2d Comm. 327, U.N. Doc. A/C 2/5 R 850 (Dec. 14,1962) (recognizing the permanent sovereignty of nations overtheir natural resources); see also generally Restatement (Third)of the Foreign Relations Law of the United States § 206 (1986).

2O

bonds is commercial activity under the ForeignSovereign Immunities Act because sovereign isacting not as a regulator but in the manner of aprivate player in the market).

Also irrelevant are authorities that addressissues of sovereign immunity law rather than the actof state doctrine. See Verlinden, B. V. v. Cent. Bank ofNigeria, 461 U.S. 480 (1983) (in granting federalcourts subject matter jurisdiction over certain civilactions by foreign plaintiffs against foreignsovereigns, Congress did not exceed the scope ofArt. III); Austria v. Altmann, 541 U.S. 677 (2004)(permitting suit to proceed against Austria under theexpropriation exception of the Foreign SovereignImmunities Act). As this Court has made clear, theact of state doctrine is distinct from sovereignimmunity, for it serves different purposes, and courtsshould not simply transpose concepts from onedoctrine to the other. See Samantar v. Yousuf, 130 S.Ct. 2278, 2290 (2010) ("IT]he act of state doctrine isdistinct f~om immunity * * * *"); Altmann, 541 U.S.at 701 ("IT]he FSIA in no way affects application ofthe act of state doctrine * * * *").

Second, and in any event, the Fifth Circuitcorrectly observed that "In]either the Supreme Courtnor any circuit have adopted a commercial activityexception to the act of state doctrine * * * *" Pet.App. 31a n.16. The exception that was supported bya plurality in Dunhill, see 425 U.S. at 698-99, hasnever been accepted by a majority opinion of thisCourt. Nor has any court of appeals adopted acommercial activity exception to the act of state

21

doctrine,la Thus there is no conflict for this Court toresolve, and, even if there were, this case does notpresent the question.

2. There Is No Conflict WithOther Circuits

Not only is there no conflict in the circuits, butthe Fifth Circuit’s act of state decision mirrors theruling in the only other act of state circuit precedenton point. In IAM v. OPEC, the Ninth Circuit heldthat a private action under the Sherman Act againstOPEC and its member nations for fixing crude oilprices was barred by the act of state doctrine. 649F.2d at 1361. The Ninth Circuit observed that"[w]hile the case is formulated as an anti-trustaction, the granting of any relief would in effect

la See Glen v. Club M~diterrande, SiA., 450 F.3d 1251, 1254 n.2

(llth Cir. 2006) ("[W]e have unequivocally stated that there isno commercial exception to the act of state doctrine.") (internalquotations omitted); World-Wide Minerals, Ltd. v. Kazakhstan,296 F.3d 1154, 1166 (D.C. Cir. 2002) ("The existence of such anexception is an unsettled question that this court has neveraddressed."); Braka v. Bancomer, S.N.C., 762 F.2d 222, 225 (2dCir. 1985) ("We do not read the dicta in [Dunhill and otherSecond Circuit cases] as an adoption of the suggested[commercial activity] exception."); Kalamazoo Spice Extractionv. Provisional Military Gov’t of Socialist Ethiopia, 729 F.2d 422,425 n.3 (6th Cir. 1984) ("IT]he commercial act exception * * *was recognized by only a plurality of the [DunhilI] Court [andthus] seems to be of doubtful precedential value."); Williams v.Curtiss-Wright Corp., 694 F.2d 300, 302 n.2 (3d Cir. 1982) ("Wenote that [the commercial] exception has In]ever been acceptedby a majority of the Supreme Court."); Int’l Ass’n of Machinists

v. OPEC, 649 F.2d 1354, 1360 (9th Cir. 1981) [hereinafter IAM]("The act of state doctrine is not diluted by the commercialactivity exception.").

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amount to an order from a domestic court instructinga foreign sovereign to alter its chosen means ofallocating and profiting from its own valuablenatural resources." Id. That is exactly the same asthe Fifth Circuit’s decision here.

Petitioners suggest that /AM is not an"instructive precedent" because it was decided beforeKirkpatrick and involved different facts. Pet. 15. Butthe material facts in the two cases are the same--thesame type of factual allegation implicates the sametypes of foreign sovereign acts. More importantly,petitioners fail to identify any inconsistency betweenIAM and Kirkpatrick regarding the appropriate legalstandard, and in fact there is none. Compare IAM,649 F.2d at 1359 ("The act of state doctrine isapposite whenever the federal courts must questionthe legality of the sovereign acts of foreign states."),with Kirkpatrick, 493 U.S. at 406 ("Act of state issuesonly arise when a court must decide--that is, whenthe outcome of the case turns upon--the effect ofofficial action by a foreign sovereign.").

Petitioners cite numerous circuit court decisionsrejecting act of state defenses, but the cases cited arenot remotely like the present one, in whichpetitioners’ complaint seeks relief that would requirea court to police the authority foreign sovereignsexercise over natural resource exploitation. Severalof these cases involved tort claims or commercialdisputes that implicated no question of thelawfulness of a foreign state’s sovereign act. 14 Others

14 See Gross v. German Found. Indus. Initiative, 456 F.3d 363,366 (3d C~c. 2006) (action for recovery of interest on fundestablished by German businesses to compensate victims ofNazi persecution did not require court to rule on validity of any

23

hold that the act of state did not extend to a reslocated in the United States.15 That other courts ofappeals declined to apply the act of state doctrinewhen confronted with legal claims and factualcircumstances readily distinguishable from thepresent case presents no basis for review of the FifthCircuit’s decision. 16

act of state); Walter Fuller Aircraft Sales, Inc. v. Philippines,965 F.2d 1375, 1377 (5th Cir. 1992) (action by Americancorporation against Philippine government commission forfailing to defend title as agreed in sale of seized airplane); Lambv. Phillip Morris, Inc., 915 F.2d 1024, 1025 (6th Cir. 1990)(claim that American corporations made large donations toforeign charity of interest to president’s spouse in order toinduce foreign government to impose price controls on rawmaterials); Williams, 694 F.2d at 301-02 (action againstAmerican corporation for inducing foreign governments not todeal with plaintiff in purchasing used aircraft engines); Arangov. Guzman Travel Advisors Corp., 621 F.2d 1371, 1373 (5th Cir.1980) (actions for breach of contract and negligence against aforeign air carrier); see also Sharon v. Time, Inc., 599 F. Supp.538, 542-43 (S.D.N.Y. 1984) (action for libel by former Israelidefense minister).

15 Allied Bank Int’l v. Banco Credito Agricola, 757 F.2d 516,

518-19 (2d Cir. 1985) (action by American banks to enforcedebts of Costa Rican banks having situs in the United Statesafter default caused by government decree); Airline Pilots Ass’nv. TACA Int’l Airlines, S.A., 748 F.2d 965, 967 (5th Cir. 1984)(order prohibiting national airline from relocating pilot base inUnited States to E1 Salvador pending collective bargainingunder Railway Labor Act).

16 Petitioners also quote isolated passages from decisions

addressing legal issues of sovereign immunity, rather than theact of state doctrine. See, e.g., Guevara v. Peru, 468 F.3d 1289,

1292 (llth Cir. 2006) (whether action to recover reward fromforeign state for information about fugitive’s whereabouts couldbe brought under the commercial activity exception to the

24

CONCLUSION

The Fifth Circuit’s application of the politicalquestion and act of state doctrines is consistent withthe jurisprudence of this Court and other circuitcourts. The petition for a writ of certiorari should bedenied.

Foreign Sovereign Immunities Act); Globe Nuclear Serv. v. AOTechsnabexport, 376 F.3d 282, 285 (4th Cir. 2004) (whetherbreach of contract action could be brought against Russiancorporation consistent with the commercial activity exception tothe Foreign Sovereign Immunities Act); Jones v. Petty RayGeophysical Geosource, Inc., 722 F. Supp. 343, 346-47 (S.D. Tex.1989), all’d, 954 F.2d 1061 (5th Cir. 1992) (sovereign’s grant ofmineral drilling concession does not support jurisdiction undercommercial activity exception to the Foreign SovereignImmunities Act). As previously noted, because the doctrines ofsovereign immunity and act of state are distinct and servedifferent purposes, these decisions provide no basis foridentifying a conflict warranting this Court’s review.

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Respectfully submitted.

SETH P. WAXMANPAUL R.Q. WOLFSONWILMER CUTLERPICKERING

HALE AND DORR LLP1875 PennsylvaniaAve., N.W.

Washington, D.C. 20006(202) 663-6000Counsel for RespondentsSaudi PetroleumInternational, Inc.,Aramco ServicesCompany, and SaudiRefining, Inc.

CAROLYN B. LAMMCounsel of Record

ANNE D. SMITHHANSEL W. PHAMJONATHAN C. ULRICHWHITE ~ CASE LLP701 13th Street, N.W.Washington, D.C. 20005(202) 626-3600clamm@whitecase.comCounsel for RespondentsSaudi PetroleumInternational, Inc.,Aramco ServicesCompany, and SaudiRefining, Inc.

ROBERT A. MILNETHOMAS J. O’SULLIVANRAJ GANDESHAJOHN D. RUEWHITE ~ CASE LLP1155 Avenue of theAmericas

New York, NY 10036(212) 819-8200Counsel for RespondentsSaudi PetroleumInternational, Inc.,Aramco ServicesCompany, and SaudiRefining, Inc.

NATHAN P. EIMERANDREW G. KLEVORNCHAD J. DOELLINGEREIMER STAHL KLEVORN &

SOLBERG LLP224 South Michigan Ave.Suite 1100Chicago, IL 60604(312) 692-1718Counsel for RespondentsCITGO Petroleum Corp.and PDV MidwestRefining LLC

26

PATRICIA A. MILLETTJAMES P. TUITEC. FAIRLEY SPILLMANKEVIN R. AMERAKIN GUMP STRAUSSHAUER & FELD LLP1333New HampshireAve., N.W.

Washington, D.C. 20036(202) 887-4000Counsel for RespondentsLukoil Americas Corp.,Getty PetroleumMarketing Inc., andLukoil Pan Americas LLC

TOM MCNAMARADALE R. HARRISDAVIS G~2~M & STUBBS

LLP1550 17th StreetSuite 500Denver, CO 80202(303) 892-9400Counsel for RespondentsPD V America Inc. andPDV Holding Inc.

MARK S. BERNSTEINSHERMIN KRUSEBARACK FERRAZZANO

KIRSCHBAUM 8:NAGELBERG LLP

200 West Madison StreetSuite 3900Chicago, IL 60606(312) 984-3100Counsel for RespondentMotiva Enterprises, LLC

JULY 2011