## Facts

- Richard J. D’Agostino, a U.S. citizen residing in Switzerland, worked for Cilag AG, a Swiss pharmaceutical company that was a subsidiary of Johnson & Johnson, Inc. (J&J), a New Jersey corporation.
- His employment relationship was at will and governed by an employment contract selecting Swiss law.
- His job included securing Swiss regulatory approval for Cilag products, which supported later marketing and regulatory steps involving the United States.
- D’Agostino alleged a Swiss supervisor instructed him to make a payment to a Swiss regulatory official connected to product registration, which he believed was an illegal bribe.
- He refused to make the payment and alleged he was terminated as a result, asserting the directive and discharge were orchestrated by J&J and its New Jersey-based executives.
- J&J contended no illegal payment was requested and characterized the proposed payment as a permissible consulting fee under Swiss law.
- The trial court applied New Jersey law and granted partial summary judgment for D’Agostino on the legal theory that termination for refusing to violate the Foreign Corrupt Practices Act (FCPA) would contravene New Jersey public policy.
- The Appellate Division reversed, applying Swiss law and concluding the termination would not be wrongful under that law.

## Issues

1. Whether New Jersey law, including its public-policy wrongful-discharge doctrine informed by the FCPA, governs claims filed in New Jersey against a New Jersey corporation and its officers arising from employment in Switzerland with a Swiss subsidiary, notwithstanding a Swiss choice-of-law clause.
2. Whether, and in what manner, the public policy expressed in the FCPA may be used as the basis for a New Jersey wrongful-discharge claim when the alleged conduct occurred abroad and the employee faced potential U.S. criminal exposure.

## Decision

- The Supreme Court of New Jersey reversed the Appellate Division.
- The court held that New Jersey law, including the public policy reflected in the FCPA, governed the dispute rather than Swiss law.
- The case was remanded for further proceedings under New Jersey law, leaving disputed factual issues (including whether the payment was a bribe or a consulting fee and the extent of New Jersey-based involvement) for resolution on remand.

## Legal Principles

- New Jersey’s choice-of-law analysis focuses on governmental interests and permits application of forum law when the dispute implicates strong New Jersey public policy and substantial forum contacts.
- A contractual selection of foreign law may be displaced when applying that law would contravene fundamental New Jersey policy, particularly where the challenged conduct is tied to the forum and enforcement would validate conduct the forum condemns.
- The public policy against bribery of foreign officials, as expressed in the FCPA, may inform New Jersey’s wrongful-discharge doctrine to protect an employee who refuses to participate in conduct that could expose the employee to criminal liability under U.S. law.
- When a New Jersey-based corporate parent and its officers are alleged to have directed or approved conduct abroad that conflicts with domestic anti-corruption policy, New Jersey may apply its law to prevent the foreign jurisdiction’s more permissive rules from defeating that policy in litigation against New Jersey defendants.

## Conclusion

The court required application of New Jersey law to a wrongful-discharge claim arising from employment in Switzerland because the alleged directive implicated the FCPA’s anti-bribery policy and was attributed to a New Jersey corporate parent and its officers, making New Jersey’s interest strong enough to override Swiss law and the contract’s choice-of-law clause.


D’Agostino v. Johnson & Johnson, Inc., 133 N.J. 516, 628 A.2d 305 (N.J. 1993)