The opinion of the court was delivered by: Robert L. Carter, District Judge.
Plaintiff Brasport, S.A. ("Brasport"), is an Argentine
corporation with its principal place of business in Buenos
Aires, Argentina. Brasport was incorporated on November 16,
1982, as a wholly-owned subsidiary corporation of Comexport,
a Brazilian corporation with its principal place of business
in Sao Paulo, Brazil. Arthur Goldlust is Chairman of the Board
of Comexport and a member of the Board of Directors of
Defendant Hoechst Celanese Corporation, formerly Celanese,
is a Delaware Corporation with its principal of business in
Defendant Celanese International Marketing Company is a
Delaware corporation and a wholly owned subsidiary of
Defendant Fiber Industries is a Delaware corporation and a
wholly owned subsidiary of Celanese. The above defendants
(hereinafter referred to collectively as "Celanese") are
manufacturers and sellers of textile products.
Defendant Ian Whittall was the Celanese South America area
sales manager for its textile products during the period in
question and had supervisory responsibility for sales in
Argentina of the Celanese products specified in the
representation agreement between Brasport and Celanese.
Prior to April 9, 1983, Armando Bachman, S.A., was the sole
representative of Celanese in Argentina for the sale of
various textile products. Juan Fabbri was the head of
Bachman's textile department.
Fabbri wanted Celanese to engage him as its exclusive
representative in Argentina, but Celanese was reluctant to do
so without Fabbri being backed by or part of a company or
organization. In that connection, Bruno Beer and Edward Weber,
executives of Celbras, Celanese-Brazil, had conversations in
October, 1982, with Arthur Goldlust of Comexport in the
latter's office in Sao Paulo and explored with him the idea of
Comexport establishing an organization in Buenos Aires, headed
by Fabbri whom they praised highly, which would become
Celanese's exclusive sales representative in Argentina.
Goldlust went to Buenos Aires in mid-November to meet with
Fabbri. On his return to Sao Paulo, he advised Celanese that
he would establish Brasport in Buenos Aires with Fabbri as its
On November 24, 1982, Fabbri gave notice to Bachman of his
decision to leave, effective December 15th. A termination
agreement was reached which provided for payment to Fabbri of
$20,000 in owed commissions. Bachman saw the announcement of
Fabbri's association with Brasport in a newspaper dated
December 29, 1982.
In January, 1983, Celanese notified Bachman that it was
terminating the representation agreement, effective April 8,
1983. On or about April 9, 1983, Celanese entered into a
representation agreement with Brasport.
Felix Bachman, chief executive officer of Bachman, testified
that in or about January, 1983, he learned that Fabbri had
been stealing from the company, selling Celanese products to
Bachman customers on his own and pocketing funds which were
owed to Bachman. On learning of these dishonesties and
disloyalties, Bachman stated he informed Dennis Sabourin, a
Celanese official, and Whittall of what he knew of Fabbri's
illicit activities at a dinner in February, 1983, in
Sabourin and Whittall deny that any such conversation about
Fabbri's improprieties took place. Sabourin does not remember
Fabbri being discussed at the dinner. Whittall remembers
Fabbri being discussed, but in the context of Bachman
expressing hurt that Fabbri whom he had introduced into the
business and treated like a son had left his employ.
Bachman did not advise any of the Celanese customers that
Fabbri was dishonest, although he insisted on accompanying
Whittall in visits to these customers in the period January to
March, 1983, to insure a smooth transfer to Brasport. Nor did
he ever advise Comexport, Brasport or Goldlust of these facts,
and he did not lodge any complaints with authorities about the
matter or take any legal action against Fabbri.