2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-2014

Kimberlee Williams v. BASF Catalysts LLC

Precedential or Non-Precedential: Precedential

Docket No. 13-1089

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13-1089

KIMBERLEE WILLIAMS, individually, as personal 

representative of the Estate of Charles L. Williams, deceased 

on behalf of said estate, and as representative of others 

similarly situated; NANCY PEASE, individually, as personal 

representative of the Estate of William Clark, deceased on 

behalf of said estate, and as representative of others similarly 

situated; MARILYN HOLLEY, as personal representative of 

the Estate of Kathryn Darnell, deceased on behalf of said 

estate, and as representative of others similarly situated; and; 

DONNA WARE, individually, as personal representative of 

the Estate of Jennifer Graham, deceased on behalf of said 

estate, and as representative of others similarly situated; 

DONNETTE WENGERD, individually, as personal 

representative of the Estate of Jennifer Graham, deceased on 

behalf of said estate, and as representative of others similarly 

situated; ROSANNE CHERNICK,

 Appellants

v.

BASF CATALYSTS LLC; CAHILL GORDON AND 

REINDEL LLP; CAHILL GORDON AND REINDEL, A 

Partnership including a Professional Corporation; THOMAS 

D. HALKET; ARTHUR A. DORNBUSCH, II; GLENN 

HEMSTOCK; HOWARD G. SLOANE, a/k/a Peter Sloane; 
2

IRA J. DEMBROW; SCOTT A. MARTIN; JOHN DOE 

BUSINESS ENTITIES 1 TO 100, are fictitious coporations, 

partnerships, or other business entities or organizations that 

BASF Catalysts LLC is responsible or liable for and whose 

identities are not presently known, which entities may have 

mined, milled, manufactured, sold, supplied; JOHN DOE 

BUSINESS ENTITIES 101 TO 200, are the fictitious firms, 

corporations, partnerships, limited liability 

companies/associations or other business entities or 

organizations whose indentities are not presently known, and 

who may have perpetrated, or are responsible for, are the alter 

egos; JOHN DOE LAWYERS 1 TO 500, are the fictitious 

names of lawyers and law firms, legal professional 

corporations, legal professional partnerships, or other 

professional business business entities or organizations, or 

their agents, employees, or servants, acting within the course 

and; JOHN DOE 1 TO 500, are the fictitious names of 

individuals whose identities are not presently known, who 

may have perpetrated, aided and abetted, conspired with, 

acted in concert with and/or are secondarily responsible or 

liable under law for the conduct or activities of

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. No. 2-11-cv-01754)

District Judge: Honorable Stanley R. Chesler

_____________

Argued: March 13, 2014

Before: McKEE, Chief Judge, and AMBRO and FUENTES, 

Circuit Judges
3

(Filed: September 3, 2014)

Michael Coren, Esq,

Harry M. Roth, Esq.

Cohen, Placitella & Roth, P.C.

2001 Market Street

Two Commerce Square, Suite 2900

Philadelphia, PA 19103

Christopher M. Placitella, Esq.

Cohen, Placitella & Roth, P.C.

127 Maple Avenue

Red Bank, N.J. 07701

Jeffrey M. Pollock, Esq. [Argued]

Fox Rothschild LLP

Princeton Pike Corp. Center

997 Lennox Drive

Princeton Pike Corporate Center, Building 3

Lawrenceville, N.J. 08648

Attorneys for Appellants

Stephen M. Orlofsky

David C. Kistler

Blank Rome LLP

301 Carnegie Center, 3rd Floor

Princeton, N.J. 08540

Eugene F. Assaf, Esq. [Argued]

Daniel A. Bress, Esq.

Peter A. Farrell, Esq.

Michael F. Williams, Esq.

Kirkland & Ellis LLP
4

655 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

Attorneys for Appellee BASF Catalysts LLC

Robert E. Ryan, Esq.

Marc D. Haefner, Esq,

Craig S. Demareski, Esq.

Connell Foley LLP

85 Livingston Avenue

Roseland, N.J. 07068

John K. Villa, Esq.

David S. Blatt, Esq.

Kannon K. Shanmugam, Esq, [Argued]

Matthew B. Nicholson, Esq.

Richard A. Olderman, Esq.

Williams & Connolly LLP

725 Twelfth Street, N.W.

Washington, D.C. 20005

Attorneys for Appellees Cahill Gordon & Reindel LLP, 

Howard G. Sloane, Ira J. Dembrow, and Scott A. 

Martin

Eric Tunis, Esq. [Argued]

Greenbaum, Rowe, Smith & Davis

99 Wood Avenue South

Iselin, NJ 08830

Olivier Salvagno Esq.

Greenbaum, Rowe, Smith & Davis LLP

Metro Corporate Campus One, Suite 4

P.O. Box 5600
5

Woodbridge, N.J. 07095

Attorneys for Appellee Thomas D. Halket

Walter F. Timpone, Esq.

Walter R. Krzastek, Jr., Esq.

Michael B. Devins, Esq.

McElroy, Deutsch, Mulvaney & Carpenter, LLP

1300 Mt. Kemble Avenue

P.O. Box 2075

Morristown, N.J. 07962

Attorney for Appellee Glen Hemstock

Kevin H. Marino, Esq.

John A. Boyle, Esq.

Marino, Tortorella & Boyle, P.C.

437 Southern Boulevard

Chatham, N.J. 07928

Attorneys for Appellee Arthur A. Dornbusch, II

OPINION

FUENTES, Circuit Judge. 

This putative class action lawsuit alleges that BASF 

Catalysts LLC and Cahill Gordon & Reindel conspired to 

prevent thousands of asbestos-injury victims from obtaining 

fair tort recoveries for their injuries. Decades ago, BASF’s 

predecessor, Engelhard Corp, discovered that its talc products 

contained disease-causing asbestos. Plaintiffs allege that, 

rather than confront the consequences of this discovery, 
6

Engelhard, with the help of its attorneys from Cahill, elected to 

pursue a strategy of denial and deceit. According to the 

complaint, Engelhard and Cahill collected the tests and reports 

that documented the presence of asbestos in Engelhard talc and 

they destroyed or hid them; when new plaintiffs focused on 

Engelhard’s talc as a possible cause of their disease, Engelhard 

represented that its talc did not contain asbestos and that no 

tests had ever said otherwise.

As pleaded, this lawsuit concerns years of purported deceit 

by Engelhard and Cahill. This action is not itself an asbestos 

injury case, but rather an action about Engelhard and Cahill’s 

conduct when they confronted asbestos injury cases in state 

courts around the country. The alleged scheme outlived most 

of the original plaintiffs, whose diseases have since taken their 

lives. It did not last forever. Spurred by recent testimony that 

Engelhard’s talc contained asbestos and that the company 

knew it, survivors and successors of the original asbestosinjury suits have brought new claims against Cahill and BASF, 

Engelhard’s successor. The crux of their complaint is that 

BASF and Cahill defrauded them in their initial lawsuits and 

caused them to settle or dismiss claims that they would 

otherwise have pursued.

The District Court dismissed plaintiffs’ complaint in its 

entirety. Analyzing the claims individually, the District Court 

determined that each was inadequately pled or barred by law. 

Analyzing the various declarations and injunctions requested 

by plaintiffs—ranging from an injunction against the future 

invocation of res judicata based on past state court judgments 

to a declaration that BASF and Cahill committed fraud—the 

District Court dismissed them as beyond its power to grant. 

The Court did, however, reject defendants’ argument that the 

Rooker-Feldman doctrine deprived it of jurisdiction. Plaintiffs 
7

have appealed the dismissal of three claims: fraud, fraudulent 

concealment, and violation of the New Jersey Racketeer 

Influenced and Corrupt Organizations Act. Plaintiffs also 

defend their requested relief.

We conclude that the District Court erred when it dismissed 

the fraud and fraudulent concealment claims. The Amended 

Class Action Complaint properly alleges the elements of fraud 

and fraudulent concealment—namely that BASF and Cahill 

lied about and destroyed the asbestos evidence to plaintiffs’ 

detriment. Neither the New Jersey litigation privilege nor 

pleading requirements stand in the way of these claims. 

The District Court did not err in dismissing the New Jersey 

RICO claim. Plaintiffs, obliged to plead an injury to their 

business or property, have not done so. They have alleged an 

injury to the prosecution of their earlier lawsuits which, under 

New Jersey law, does not constitute an injury to their property.

Lastly, the District Court correctly discerned that it could 

not grant plaintiffs all of their requested relief. To the extent 

that plaintiffs attempt to have the District Court decide, at this 

point, the statute of limitations, laches, and preclusion issues 

that will likely arise in future cases, plaintiffs fail to present at 

Court with a whole or ripe controversy. Plaintiffs may, 

however, seek injunctive and declaratory relief aimed at 

resolving the claims alleged.

Accordingly, we reverse in part, affirm in part, and remand 

for further proceedings. 

I. Background of the Case

We accept as true the Amended Class Action Complaint’s 

well-pled allegations. That complaint alleges a sustained plot 

by BASF and its law firm, Cahill Gordon, to mislead actual and 
8

potential asbestos-exposure plaintiffs into believing that 

BASF’s talc products did not contain asbestos. In truth, 

plaintiffs contend, BASF’s own tests and records proved that 

its talc products contained asbestos. 

Defendants in this case include both Engelhard’s successor, 

BASF, and Engelhard’s former employees and attorneys. For 

much of the events of the case, the relevant BASF companies 

operated under the Engelhard label.1 Thomas D. Halket was 

BASF’s in-house counsel assigned to asbestos claims. Glenn 

Hemstock was BASF’s Vice President of Research and 

Development. Hemstock supervised those scientists who 

“tested or conducted research on Engelhard’s talc.” Compl. ¶ 

42. Arthur A. Dornbusch II was BASF’s General Counsel. We 

refer to these BASF defendants as “BASF” or “Engelhard.”

Cahill Gordon & Reindel LLP represented BASF and its 

predecessors in asbestos litigation from 1983 to 2010. During 

that time, Howard G. Sloane, Scott A. Martin, and Ira J. 

Dembrow worked for BASF as lawyers at Cahill. We refer to 

these Cahill defendants as “Cahill.”

The six named plaintiffs in this action represent the interest 

of a deceased spouse or relative who had worked in proximity 

to asbestos and died of asbestos disease. These plaintiffs—for 

whom we will often use Kimberlee Williams as a 

representative—assert fraud, fraudulent concealment, and 

New Jersey RICO claims on behalf of their deceased relatives.

 

1 The Engelhard businesses included Engelhard Corp., 

Engelhard Industries, Engelhard Mineral & Chemical Corp., 

and Eastern Magnesia Talc Co. BASF acquired the Engelhard 

companies in 2006. 
9

A. Engelhard mined talc containing asbestos.

From 1967 to 1983, Engelhard operated a talc mine in 

Johnson, Vermont. “Talc is a naturally occurring mineral that 

is mined and then processed or used in manufacturing by 

companies in numerous parts of the United States.” Compl. ¶ 

68. Engelhard processed the talc from the Johnson Mine into 

products, such as “Emtal talc” and “G&S Talc.” Compl. ¶ 73. 

These products found use in wall board, joint compound, auto 

body “filler,” dusting agents, and children’s balloons. Compl. 

¶ 74. 

Emtal talc and other Engelhard talc products “contained 

chrysotile asbestos fibers, as well as other asbestos forms 

including tremolite and serpentine asbestos.” Compl. ¶ 75. 

During the 1970s and 1980s, multiple laboratory tests indicated 

that Engelhard talc, including Emtal brand talc and talc from 

the Johnson Mine, contained asbestos. Engelhard, and later 

BASF, “had knowledge” of these tests and their results, and, in 

fact, maintained “[t]he tests and assay results” in their records. 

Compl. ¶¶ 76-80.

Faced with unfavorable test results, Engelhard ignored 

them. According to the complaint, Engelhard “represented to 

its customers, industry trade groups and the Federal 

Government that the Emtal talc was asbestos free and even 

marketed the product as a viable asbestos substitute, thereby 

causing wide spread [sic] and unknowing exposure to asbestos 

to United States citizens, including workers and workers’ 

spouses and children, nationwide.” Compl. ¶ 83.

B. Engelhard gets sued for the asbestos-related death of 

an employee.

In 1979, David Westfall sued Eastern Magnesia Talc 

Company, an Engelhard subsidiary, for exposing his deceased 
10

relative to asbestos. Cahill Gordon defended Eastern Magnesia 

in the suit. The lawsuit turned-up “test and assay results” 

confirming the presence of asbestos in Engelhard’s talc. 

Compl. ¶ 91. 

Engelhard’s personnel and records demonstrated that the 

talc had been contaminated. Glenn Hemstock, then an 

Engelhard scientist and executive, gave two days of deposition 

testimony in the Westfall case. Hemstock testified that Emtal 

talc contained asbestos fibers. He “admitted that various tests 

performed throughout the 1970s and 1980s, both by 

[Engelhard] employees and by third parties, indicated the 

presence of asbestos fibers in Emtal talc that was tested or 

assayed.” Compl. ¶ 98. Emil J. Triglia, an Engelhard employee, 

also testified that Emtal talc contained asbestos fibers. Peter 

Gale, an Engelhard researcher, testified that he had conducted 

analytical testing on talc ore samples obtained from the 

Johnson mine. He recorded his results in lab notebooks stored 

in Engelhard’s library. 

After these depositions, BASF, through Cahill, settled the 

Westfall case. The settlement included a confidentiality clause 

that prohibited the Westfall parties from discussing the case or 

sharing the evidence. Much of the Westfall evidence has yet to 

be seen again. 

C. Engelhard covers-up its asbestos exposure to mitigate 

future tort liabilities.

Engelhard anticipated that the Westfall action would be the 

first of many asbestos lawsuits. In March 1984, Hemstock 

circulated a memorandum entitled “DOCUMENT 

RETRIEVAL—DISCONTINUED OPERATIONS.” Compl. 

¶ 128. The memorandum directed Engelhard employees to

collect for discard documents relating to Emtal talc. It stated 
11

that “[i]t is the policy of Engelhard Corporation to avoid the 

undue accumulation of documents that are no longer likely to 

be needed in our business operations.” Compl. Ex. 3. The 

memorandum instructed employees to collect materials related 

to Engelhard Minerals Ltd. and Emtal, among other 

“discontinued operations.” Compl. Ex. 3. The employees 

complied. “All documentary evidence relating to Engelhard’s 

asbestos-containing talc[] was thereafter gathered up, collected 

by the BASF Perpetrators or their agents, and subsequently 

was either destroyed or secreted away . . . .” Compl. ¶ 131.

Next, the complaint alleges, Engelhard manufactured 

favorable evidence with Cahill’s help. Together, they 

assembled “template and stock pleading, discovery and 

motions documents for use by local counsel in asbestos injury 

claim lawsuits” that contained false or misleading information 

about Emtal talc products. Compl. ¶ 144(e). Engelhard and 

Cahill procured “false unsworn and sworn representations, 

including false affidavits, false and incorrect expert reports and 

discovery response verifications by [Engelhard] employees, 

[Engelhard] officers, and/or [Engelhard] consultants and 

experts.” Compl. ¶ 144(h). 

Cahill and Engelhard, and later, BASF, used the absence of 

inculpating evidence and the existence of false exonerating 

evidence to frustrate asbestos injury suits. The complaint 

charges that, when lawsuits materialized, BASF and Cahill 

misled the claimants about the facts. “[W]henever an asbestos 

injury claim or lawsuit was filed or came to BASF’s attention,” 

BASF represented “systematically and uniformly

. . . that Emtal talc ore and products did not contain asbestos 

and/or there was not any evidence that it did.” Compl. ¶ 138. 

Indeed, BASF’s lawyers threatened claimants and their 

lawyers “with the possibility of sanctions or penalties if 
12

asbestos claims or suits were not discontinued by questioning 

counsels’ good faith basis to continue the claims” in light of 

BASF’s representations that its talc products did not contain 

asbestos. Compl. ¶ 144(i). Further, because BASF and its 

lawyers made these misstatements “in correspondence, 

responses to discovery and/or pleadings or motion papers,” 

they misled courts as well as adversaries. See Compl. ¶¶ 144(f), 

144(j). 

The scheme worked against the named plaintiffs. 

Williams’s husband, Charles, for example, developed 

asbestosis and lung cancer after a career at Goodyear Tire & 

Rubber. The Williams sued Engelhard in Ohio state court. 

Defendants told them that Engelhard’s talc did not contain 

asbestos. In response, they voluntarily dismissed the claims 

against Engelhard. Similarly, the other plaintiffs discontinued, 

dismissed, or settled their asbestos-injury lawsuits against 

BASF based on Engelhard and Cahill Gordon’s false 

representations. 

D. A recent lawsuit revealed the long-standing scheme.

The scheme collapsed a few years ago, during a New Jersey 

Superior Court action. In that case, Paduano v. Ace Scientific 

Supply Co., a former research chemist for Engelhard testified 

that he had discovered asbestos in Engelhard’s talc while 

working for the company many years ago. No. MID-L-2976-

09 (N.J. Super.). He further testified that Engelhard closed the 

Johnson mine because it contained asbestos and that defendant 

Hemstock instructed him to turn over all of his talc-related 

records. 

The chemist’s testimony triggered discovery into what 

documents BASF had destroyed or concealed in the litigation. 

Many of these documents had been secretly kept in a Cahill 
13

storage facility. The Paduano case settled and the 

incriminating documents were placed in escrow pursuant to the 

terms of the settlement agreement. Among the documents are 

tests from 1972, 1977, 1978, and 1979 that establish the 

presence of asbestos fibers in Engelhard talc. None had ever 

been produced or disclosed in earlier litigation. 

E. Proceedings before the District Court

In the aftermath of the Paduano case, Williams and the 

other named plaintiffs commenced this action. The Amended 

Class Action Complaint asserted claims of N.J. RICO, N.Y. 

Judiciary Law § 487, fraudulent concealment, fraud, fraudupon-the-court, unjust enrichment, and civil conspiracy. For 

these claims, Williams requests declaratory and injunctive 

relief intended to constrain BASF and Cahill from asserting res 

judicata, statute of limitations, or other defenses that may be 

asserted in future or re-activated asbestos-injury suits. 

Williams also requests a range of other relief, including class 

certification, a notice “informing Class Members or their 

representatives of the pendency of this action,” an injunction 

against further spoliation or misrepresentations, and “[a] 

determination of Defendants’ liability for punitive damages to 

Plaintiffs and the Class relating to the spoliation of evidence 

relevant and material to establishing asbestos injury claims 

against BASF.” See Complaint Demand for Relief ¶¶ (d), (f), 

& (i).

BASF, Cahill, and the individual defendants moved to 

dismiss the Amended Class Action Complaint. They argued 

that (1) the District Court lacked jurisdiction over the case 

because of the Rooker-Feldman doctrine, (2) the plaintiffs had 

not adequately pled their claims, and (3) the District Court 

lacked the authority, or jurisdiction, to order the requested 

relief due to either the Anti-Injunction Act or principles of 
14

justiciability. The District Court rejected the challenge to its 

jurisdiction, but it accepted most of the other arguments. With 

respect to the N.J. RICO and fraudulent concealment claims, 

the Court concluded that Williams had not adequately pled 

them. With respect to the fraud claim, the Court determined 

that New Jersey’s litigation privilege immunized defendants 

from tort liability. With respect to the requested relief, the 

Court determined that it lacked the power to order much of the 

requested relief because the relief would undermine state court 

judgments in violation of the Anti-Injunction Act or because 

the relief would decide issues to be raised in future lawsuits. 

Accordingly, the District Court granted BASF’s and 

Cahill’s motions under Rule 12(b)(6) of the Federal Rules of 

Civil Procedure, and dismissed the complaint in its entirety 

with prejudice. Williams has appealed the dismissals of the 

N.J. RICO, fraud, and fraudulent concealment claims, and 

challenged the District Court’s conclusions regarding its power 

to order her requested relief.

II. Jurisdiction 

Defendants renew their Rooker-Feldman challenge to 

federal jurisdiction. The Rooker-Feldman doctrine strips 

federal courts of jurisdiction over controversies “that are 

essentially appeals from state-court judgments.” Great W. 

Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 

165 (3d Cir. 2010). The District Court concluded that Williams 

was not appealing from a state court judgment and, therefore, 

exercised jurisdiction pursuant to 28 U.S.C. § 1332.

We agree with the District Court that Williams’s suit does 

not trigger Rooker-Feldman and thereby deprive federal courts 

of jurisdiction. “Rooker-Feldman . . . is a narrow doctrine, 

confined to cases brought by state-court losers complaining of 
15

injuries caused by state-court judgments rendered before the 

district court proceedings commenced and inviting district 

court review and rejection of those judgments.” Lance v. 

Dennis, 546 U.S. 459, 464 (2006) (quotation marks omitted); 

see Great W. Mining & Mineral Co, 615 F.3d at 166. Those 

circumstances do not appear here.

Williams does not complain of an injury caused by a statecourt judgment. She asserts claims for fraud, fraudulent 

concealment, and N.J. RICO. Each of those claims hinges on 

BASF and Cahill’s actions before and during earlier asbestosinjury lawsuits. In particular, Williams targets 

misrepresentations made by BASF and Cahill regarding the 

asbestos content of Emtal talc products as well as BASF and 

Cahill’s destruction of material evidence. According to 

Williams, it was BASF and Cahill’s misconduct that injured 

her, not any state-court judgment. Because this suit does not 

concern state-court judgments, but rather independent torts 

committed to obtain them, the Rooker-Feldman doctrine does 

not apply.

We conclude the District Court validly exercised 

jurisdiction. We exercise jurisdiction pursuant to 28 U.S.C. 

§ 1291. 

III. Claims

This Court reviews Rule 12(b)(6) dismissals de novo. 

Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). “To 

survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)).
16

We will consider the fraud, fraudulent concealment, and 

N.J. RICO claims in turn. Before doing so, however, we must 

decide which state’s law to apply to the tort claims.

A. Choice-of-Law

The parties here brief and rely on New Jersey’s common 

law. But not all of the parties are from New Jersey, nor did all 

of the events take place there. We, therefore, begin by 

considering whether to apply the law of New Jersey, as briefed 

and argued by the parties, or whether to undertake a choice-oflaw analysis.

All U.S. Courts of Appeals to have addressed the issue have 

held that choice-of-law issues may be waived.2 Our Court has 

been inconsistent on this point. Decades ago, we refused to 

 

2 E.g., P.R. Hosp. Supply, Inc. v. Bos. Scientific Corp., 426 F.3d 

503, 505-06 (1st Cir. 2005); Saks v. Franklin Covey Co., 316 

F.3d 337, 349 (2d Cir. 2003); Bilancia v. Gen. Motors Corp., 

538 F.2d 621, 623 (4th Cir. 1976); Fruge v. Amerisure Mut. 

Ins. Co., 663 F.3d 743, 747 (5th Cir. 2011); Meridia Prods. 

Liab. Litig. v. Abbott Labs., 447 F.3d 861, 865 (6th Cir. 2006); 

Wachovia Sec., LLC v. Banco Panamericano, Inc., 674 F.3d 

743, 751 (7th Cir. 2012); P & O Nedlloyd, Ltd. v. Sanderson 

Farms, Inc., 462 F.3d 1015, 1017 n.3 (8th Cir. 2006); Johnson 

v. Armored Transp. of Cal., Inc., 813 F.2d 1041, 1044 (9th Cir. 

1987); Mauldin v. Worldcom, Inc., 263 F.3d 1205, 1211-12 

(10th Cir. 2001); Pulte Home Corp. v. Osmose Wood 

Preserving, Inc., 60 F.3d 734, 739 n.15 (11th Cir. 1995); 

Jannenga v. Nationwide Life Ins. Co., 288 F.2d 169, 172 (D.C. 

Cir. 1961); Warner v. Ford Motor Co., 331 F.3d 851, 856 n.2 

(Fed. Cir. 2003).
17

apply the doctrine of waiver to choice-of-law issues: “The 

appropriate law must be applied in each case and upon a failure 

to do so appellate courts should remand the cause to the trial 

court to afford it [the] opportunity to apply the appropriate law, 

even if the question was not raised in the court below.” United 

States v. Certain Parcels of Land, 144 F.2d 626, 630 (3d Cir. 

1944). For some time thereafter, this Court refused to apply 

waiver to choice-of-law issues. See, e.g., Parkway Baking Co. 

v. Freihofer Baking Co., 255 F.2d 641, 646 (3d Cir. 1958). 

Then the Court, in Mellon Bank, N.A. v. Aetna Business Credit, 

Inc., assumed that the parties had waived their choice-of-law 

arguments without discussing their authority to do so. 619 F.2d 

1001, 1005 n.1 (3d Cir. 1980). Thereafter, our Circuit, sitting 

en banc, observed that “choice of law issues may be waived.” 

Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 180 (3d 

Cir. 1995) (en banc). As a result, “it [has been] an open 

question whether choice-of-law issues are waiveable [sic] in 

this Circuit.” Pac. Emp’rs Ins. Co. v. Global Reinsurance 

Corp. of Am., 693 F.3d 417, 431 n.7 (3d Cir. 2012); see also 

Nuveen Mun. Trust v. WithumSmith Brown, P.C., 692 F.3d 

283, 301 (3d Cir. 2012); Huber v. Taylor, 469 F.3d 67, 83 (3d 

Cir. 2006) (Fuentes, J., dissenting).

Our review of the law in this area convinces us that parties 

may waive choice-of-law issues. Permitting waiver accords 

with the law of every other circuit. It also makes sense. 

Generally speaking, a party abandons any objection that it does 

not make. See Puckett v. United States, 556 U.S. 129, 134 

(2009). Of course, litigants may not waive issues that go to the 

power of the courts to hear a case. See, e.g., Ins. Corp. of Ir., 

Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 

(1982). But choice-of-law questions do not go to the court’s 

jurisdiction. See Neely, 63 F.3d at 174-78. Moreover, the 

doctrine of waiver serves a functional purpose. By requiring 
18

litigants to identify and argue legal issues before the district 

courts, we ensure that we have a record to review on appeal. 

The same principles favor a rule that requires litigants to raise 

choice-of-law issues to the District Court.

The parties did not litigate the choice-of-law question 

before the District Court. Further, neither plaintiffs nor 

defendants have challenged the District Court’s use of New 

Jersey law to analyze the tort claims. To the contrary—in 

response to our request for supplemental briefing, plaintiffs 

asserted that they “brought their case in New Jersey asserting 

claims including New Jersey state law claims of fraud and 

fraudulent concealment.” Williams Rule 28j Letter dated 

March 20, 2014 at 1, Williams v. BASF Catalysts LLC, No. 13-

1089. BASF and Cahill both agreed that New Jersey law 

applied and, moreover, that choice-of-law issues may be 

waived. BASF Rule 28j Letter dated March 20, 2014 at 1, 3, 5; 

Cahill Rule 28j Letter dated March 20, 2014 at 1, 3. Thus, to

the extent the parties may have sought the application of other 

law to the tort claims, they have waived their right to do so. 

Accordingly, we apply New Jersey law. 

B. The Complaint alleges a plausible claim for fraud.

We next address the District Court’s dismissal of 

Williams’s fraud claim on the basis of New Jersey’s litigation 

privilege. The privilege often immunizes lawyers and parties 

from recrimination based on their statements in judicial 

proceedings, but the privilege has never applied to shield 

systematic fraud directed at the integrity of the judicial process. 

Nor should it be. Accordingly, we reverse the District Court’s 

dismissal of this claim.
19

1. Standard

New Jersey recognizes a common-law fraud cause of 

action. A plaintiff seeking to recover for fraud must allege five 

elements: “(1) a material misrepresentation of a presently 

existing or past fact; (2) knowledge or belief by the defendant 

of its falsity; (3) an intention that the other person rely on it; 

(4) reasonable reliance thereon by the other person; and (5) 

resulting damages.” Banco Popular N. Am. v. Gandi, 876 A.2d 

253, 260 (N.J. 2005) (quotation marks omitted).

2. Analysis

Williams asserts that BASF and Cahill Gordon falsely 

represented that “BASF and its predecessor companies’ talc 

ore and talc products did not contain asbestos fibers” and “that 

there was not any evidence BASF and its predecessor 

companies[’] talc ore and talc products contained asbestos.” 

Compl. ¶ 344. The complaint pleads many of these statements 

precisely, quoting from various letters and faxes sent by Cahill 

attorneys on behalf of BASF. It alleges that BASF and Cahill 

offered these representations to Williams, for example, for the 

purpose of “obstructing, impeding, impairing, [or] 

terminating” asbestos-injury litigation. Compl. ¶ 347. And 

Williams alleges that, after receiving these communications, 

she and the other plaintiffs each altered their litigation 

posture—settling, dismissing, or abandoning their claims 

against BASF. 

Taken together, Williams has alleged that BASF and Cahill 

obtained “an undue advantage by means of some act or 

omission that is unconscientious or a violation of good faith,” 

the essence of fraud. See Jewish Ctr. of Sussex County v. 

Whale, 432 A.2d 521, 524 (N.J. 1981).
20

Nonetheless, the District Court dismissed the claim on the 

ground that New Jersey’s litigation privilege foreclosed 

liability for any statements made in the course of asbestosinjury litigation. New Jersey’s so-called litigation privilege 

functions as a form of civil immunity: it “generally protects an 

attorney from civil liability arising from words he has uttered 

in the course of judicial proceedings.” Loigman v. Twp. 

Committee of Twp. of Middletown, 889 A.2d 426, 433 (N.J. 

2006). The privilege reflects “the need for unfettered 

expression” in adversarial proceedings. Hawkins v. Harris, 661 

A.2d 284, 287 (N.J. 1995). Cahill and BASF urge the Court to 

extend the privilege to the false statements and evidence given 

to Williams and the other plaintiffs. 

We decline. New Jersey’s Supreme Court has interpreted 

the privilege to “protect[] attorneys not only from defamation 

actions, but also from a host of other tort-related claims.” 

Loigman, 889 A.2d at 436. But New Jersey’s Supreme Court 

has never recognized the litigation privilege to immunize 

systematic fraud, let alone fraud calculated to thwart the 

judicial process. Thus, we are “charged with predicting how 

that court would resolve the issue.” See Illinois Nat’l Ins. Co. 

v. Wyndham Worldwide Operations, Inc., 653 F.3d 225, 231 

(3d Cir. 2011). We believe that New Jersey’s Supreme Court 

would not extend the privilege to this claim.

First, the complaint describes conduct that impairs New 

Jersey’s goals for the litigation privilege. “One purpose of the 

privilege is to encourage open channels of communication and 

the presentation of evidence in judicial proceedings.” Hawkins,

661 A.2d at 289 (quotation marks omitted). Another is to 

afford parties “an unqualified opportunity to explore the truth 

of a matter without fear of recrimination.” Id. at 289-90. Here, 

the claim is that lawyers and litigants actively frustrated the 
21

search for the truth and purposefully misled their adversaries. 

The purposes of the privilege are never served by allowing 

counsel to practice deceit and deception in the course of 

litigation, nor by permitting counsel to make false and 

misleading statements in the course of judicial proceedings.

Indeed, when this kind of misconduct has occurred in the 

past, policy considerations have weighed against extending the 

privilege. In Matsuura v. E.I. du Pont de Nemours & Co., for 

example, the Supreme Court of Hawaii confronted claims that 

DuPont and its attorneys withheld inculpating chemical 

evidence from their adversaries and caused them to settle their 

claims. 73 P.3d 687, 689-92 (Haw. 2003). The Court decided 

that the law’s interest in resolving disputes fairly and on the 

merits outweighed the competing interest in placing judgments 

or parties beyond reproach. See id. at 700. Although New 

Jersey’s litigation privilege is similarly concerned with “giving 

finality to judgments, and avoiding unending litigation,” 

Hawkins, 661 A.3d at 292, we think New Jersey would follow 

Hawaii’s approach on these facts. The practice of allowing 

attorneys and litigants to use unfettered expression to make 

their cases is to serve the courts’ truth-seeking function; it is 

not the goal in itself. Thus, when, as here, defendants have 

uttered words that prevent a fair proceeding, the litigation 

privilege provides no relief. 

Second, New Jersey’s Supreme Court has admonished that 

“[t]he absolute privilege does not extend to statements made in 

situations for which there are no safeguards against abuse.” 

Hawkins, 661 A.2d at 291 (quoting Demopolis v. Peoples Nat’l 

Bank, 796 P.2d 426, 430 (Wa. Ct. App. 1990) (quotation marks 

omitted)). For defamation and the like, judicial oversight or 

criminal or professional sanctions often adequately deter 

litigation misconduct. Loigman, 889 A.2d at 438. These 
22

deterrents prove inadequate for systematic fraud. For one 

thing, the misconduct occurred in and out of courtrooms from 

Ohio to Pennsylvania to New York. No single court had the 

perspective or authority to mitigate the fraud or the ability to 

detect it. For another, Williams has alleged that BASF—the 

client—was responsible for “verifying the truth of [its] 

discovery responses” and for “[s]uborning or otherwise 

procuring false unsworn and sworn representations from its 

employees, officers[,] consultants and experts.” Compl. 

¶¶ 143(d), 143 (g). Professional sanctions have little deterrent 

value against clients. Finally, this alleged fraud apparently 

outlasted the careers of many of the perpetrators. However 

appropriate professional discipline may have been (or may still 

be), should the allegations be proven true, that discipline would 

be too little and too late to do any good for the plaintiffs or the 

courts. 

Third, the allegations of this case place the offending

conduct far from the core of the privilege. Although “[t]he 

litigation privilege protects attorneys not only from defamation 

actions, but also from a host of other tort-related claims,” the 

privilege is “[t]ypically” invoked against defamatory remarks. 

See Loigman, 889 A.2d at 435-36. Indeed, the Restatement of 

Torts identifies this type of privilege as a defense to a 

defamation action. See Restatement (Second) of Torts §§ 586 

(defense for attorney at law), 587 (defense for parties to 

judicial proceedings). This case is not a situation where a 

witness, lawyer, or agent made hurtful or defamatory remarks 

about another, as in Hawkins. 661 A.2d at 287-290. Rather, the 

allegations here describe conduct calculated to thwart the 

judicial process and, in that way, are more akin to malicious 

prosecution, perjury, and spoliation. The judicial privilege will 

not excuse malicious prosecution or criminal perjury. See 

Dello Russo v. Nagel, 817 A.2d 426, 433 (N.J. Super. Ct. 2003) 
23

(malicious prosecution); Durand Equip. Co. v. Superior 

Carbon Prods., Inc., 591 A.2d 987, 989 (N.J. Super. Ct. 1991) 

(perjury). Nor will it apply to claims of spoliation, which 

concerns a party’s conduct and not the party’s statements. See 

Viviano v. CBS, Inc., 597 A.2d 543, 549-550 (N.J. Super. Ct. 

1991). We conclude that it likewise would not apply here.

Fourth, even a broad reading of the privilege fails to fit the 

facts of this case. “The privilege shields any communication 

(1) made in judicial or quasi-judicial proceedings; (2) by 

litigants or other participants authorized by law; (3) to achieve 

the objects of the litigation; and (4) that have some connection 

or logical relation to the action.” Loigman, 889 A.2d at 437 

(quotation marks omitted). Here, the complaint alleges, BASF 

and Cahill engineered the false statements and evidence in 

advance of litigation. Then, either directly or through local 

counsel, BASF and Cahill deployed their prefabricated defense 

against claimants as they arose. They did not merely use a 

permissible procedural device in bad faith, as in Loigman. 889 

A.2d at 437. They rigged the game from the beginning. Thus, 

we cannot accept, as BASF contends, that its statements were 

made “to achieve the object of the defense” insofar as they 

“were made with the aim of defeating Plaintiffs’ asbestos 

personal injury claims and shielding BASF from liability.” 

BASF Br. 39 (quotation marks omitted). The New Jersey 

Supreme Court has observed that “[s]eeking truthful, accurate, 

and non-tainted testimony certainly is the objective of every 

litigated case.” Loigman, 889 A.2d at 429-31, 437. How then 

can calculated false and misleading statements serve the truthseeking function of the litigation? According to the complaint, 

BASF and Cahill were not mischaracterizing the facts; they 

were creating them.
24

Finally, the New Jersey Supreme Court has never 

immunized systematic fraud designed to prevent a fair 

proceeding. Neither have the trial or intermediate courts of 

New Jersey. In Ruberton v. Gabage, the cornerstone of BASF 

and Cahill’s assertion that the privilege extends to all fraud 

torts, the New Jersey Superior Court, Appellate Division, 

applied the privilege to a party’s claim that he had been 

induced to settle by tortious threats of his adversary’s lawyer. 

654 A.2d 1002, 1004-05 (N.J. Super. Ct. 1995). But the 

Appellate Division described the issue on appeal as whether 

the threat “constitutes a malicious abuse of process” and, after 

concluding it did not, alternatively held that the litigation 

privilege would bar the claim. Id. Nothing in Ruberton

persuades us that New Jersey’s Supreme Court would insulate 

BASF, Cahill, or future defendants like them, from liability. 

Neither does anything in Wately v. Shaler, also relied on by 

defendants. See 2013 WL 5299499 (N.J. Super. Ct. Sept. 23, 

2013). In that unpublished opinion, the New Jersey Superior 

Court, Appellate Division, affirmed the dismissal of a lawsuit 

brought by a former criminal defendant against the expert 

witness he had retained. Id. at *1. The privilege applied to 

defeat the claim that the criminal defendant had been misled 

by the expert because the expert’s trial testimony did not match 

his pre-trial description of how he intended to testify. Id. at *1-

2. Watley might create a basis for immunizing the expert 

witnesses who filed affidavits in plaintiffs’ asbestos-injury 

cases. It does not extend immunity to those who manipulate 

their adversaries in and out of court over a period of decades.

Williams has pled a claim for fraud. The viability of that 

claim turns on whether New Jersey would extend its litigation 

privilege to a claim of fraud directed at the integrity of the 

judicial process. Based on the policies underlying the privilege 

and the New Jersey cases applying it, we conclude that New 
25

Jersey’s Supreme Court would not extend the privilege to the 

fraud claim alleged here. Accordingly, we reverse the District 

Court’s dismissal of this claim.

C. The Complaint alleges a plausible claim for 

fraudulent concealment.

The District Court erred when it concluded that Williams 

had not alleged a plausible claim for fraudulent concealment. 

Williams’s claim rests on well-pled factual allegations. 

1. Standard

In law, spoliation refers to “the hiding or destroying of 

litigation evidence, generally by an adverse party.” Rosenblit 

v. Zimmerman, 766 A.2d 749, 754 (N.J. 2001) New Jersey 

courts oppose it: “Such conduct cannot go undeterred and 

unpunished and those aggrieved by it should be made whole 

with compensatory damages and, if the elements of the 

Punitive Damages Act are met, punitive damages for 

intentional wrongdoing.” Id. at 758 (citation omitted).

New Jersey permits plaintiffs to recover in an independent 

action for harm caused in a prior proceeding by an adversary’s 

spoliation: “[T]he tort of fraudulent concealment, as adopted, 

may be invoked as a remedy for spoliation where those 

elements exist.” Id. 

To prove the tort, a plaintiff must establish five elements:

(1) The defendant had a legal obligation to disclose 

evidence in connection with an existing or pending 

litigation;

(2) the evidence was material to the litigation;

(3) the plaintiff could not reasonably have obtained access 

to the evidence from another source;
26

(4) the defendant intentionally withheld, altered, or 

destroyed the evidence with purpose to disrupt the 

litigation; and

(5) the plaintiff was damaged in the underlying action by 

having to rely on an evidential record that did not 

contain the evidence defendant concealed. 

Id.

2. Analysis

Williams has alleged the first four elements of a spoliation 

claim: As early as 1979, BASF faced actual or threatened 

litigation over asbestos injuries caused by its products. BASF, 

and its lawyers at Cahill, anticipated additional lawsuits in the 

future. BASF possessed evidence that its talc products 

contained asbestos, including assays, lab notes, and testimony. 

Williams could not have accessed the evidence—most of 

which was held exclusively by BASF and Cahill—through any 

other means. And, Williams now claims, rather than maintain 

the evidence, BASF and Cahill concealed or destroyed it. 

Taken together, these facts, if proven, establish that BASF and 

Cahill intentionally destroyed or withheld material evidence 

that they were duty-bound to disclose and that their adversaries 

could not otherwise access. Cf. Rosenblit, 766 A.2d at 758.

The parties dispute whether Williams has alleged the fifth 

element of the spoliation claim, that she was “damaged in the 

underlying action by having to rely on an evidential record that 

did not contain the evidence defendant concealed.” Id. BASF 

and Cahill contend that this element requires plaintiffs to 

demonstrate that they would have prevailed in the underlying 

action. Accepting this argument, the District Court determined 

that 
27

[t]here is no indication at all 

in the Amended Complaint

that it was a lack of access 

to the allegedly destroyed 

evidence which resulted in 

the termination of 

Plaintiffs’ claims before 

obtaining a favorable 

verdict against BASF or in 

the settlement of such 

claims for amounts that did 

not fairly and sufficiently

compensate Plaintiffs’ 

decedents for their injuries.

App’x 30.

We believe the bar was set too high. New Jersey courts have 

explained that a spoliation injury may exist when the conduct 

affects the size or existence of a damages award at trial. See 

Tartaglia v. UBS PaineWebber Inc., 961 A.2d 1167, 1190 (N.J. 

2008). The injury may also take the form of expenses incurred 

to litigate the case without the spoliated evidence. See id. And 

a plaintiff may recover “whether [the] plaintiff succeeds on the 

claim in the original litigation or not”; indeed, a plaintiff may 

succeed in the underlying case and nevertheless bring a later 

spoliation claim. See id.; Robertet Flavors, Inc. v. Tri-Form 

Const., Inc., 1 A.3d 658, 671 (N.J. 2010). 

In addressing this issue, the District Court looked to a 1998 

district court opinion that predicted that the New Jersey 

Supreme Court would not allow an affirmative cause of action 

for intentional spoliation, Larison v. City of Trenton, 180 

F.R.D. 261, 266 (D.N.J. 1998). The New Jersey Supreme Court 

has since authorized tort recovery for intentional spoliation. 
28

See Rosenblit, 766 A.2d at 758. Moreover, when it did so, the 

New Jersey Supreme Court did not adopt the strict causation 

and damages theories propounded by Larison. Compare 

Larison, 180 F.R.D. at 266 (predicting that a prima facie case 

could not be established unless and until the plaintiff shows 

that he failed to prove his original case because of the missing 

evidence), with Tartaglia, 961 A.2d at 1190 (holding by New 

Jersey Supreme Court that a plaintiff may recover from a 

spoliator even if the plaintiff prevails in the original suit). 

Accordingly, plaintiffs did not have to allege facts to show that 

they “would have succeeded in proving their asbestos injury 

claims against BASF,” as the District Court held, App’x 36, 

but rather facts to show that BASF and Cahill’s destruction of 

evidence harmed their case. 

Plaintiffs’ allegations that they received diminished 

recovery, that their lawsuits were impaired, and that they 

expended time and money to attempt to litigate around the 

spoliated evidence, whether singly or in combination, suffice 

to complete the concealment claim. Plaintiffs allege “that they 

were materially hampered, impaired and prevented from 

proving their claims that BASF’s and its predecessor 

companies’ talc ore and talc products contained asbestos and 

proximately caused their underlying asbestos injury.” Compl. 

¶ 337. Plaintiffs allege that their personal injury suits suffered 

as a result of the concealed and destroyed evidence—they 

settled cases on unfavorable terms, decided not to bring cases 

that appeared to be meritless, or failed to sustain cases for lack 

of proof that BASF’s products contained talc. Additionally, 

plaintiffs allege that they have “incurred pecuniary losses and 

damages” due to BASF and Cahill’s conduct, including “the 

expenses and costs of proceeding without” the spoliated 

evidence and “the expenses and costs incurred in the effort to 

replace, locate, or identify evidence.” Compl. ¶ 340. Taken 
29

together, these allegations, if proven, demonstrate that 

plaintiffs were “damaged in the underlying action by having to 

rely on an evidential record that did not contain the evidence 

defendant concealed.” Rosenblit, 766 A.2d at 758.

We disagree with BASF and Cahill that plaintiffs 

allegations are “conclusory and implausible.” See, e.g., Cahill 

Br. 46. As a motion to dismiss, the Court takes as true “wellpleaded factual allegations” and, after doing so, “determine[s] 

whether they plausibly give rise to an entitlement to relief.” 

Great W. Mining & Mineral Co., 615 F.3d at 177 (quoting 

Iqbal, 556 U.S. at 679). 

Commonsense and judicial experience underscore the 

plausibility of Williams’s claims. Williams alleges that in the 

asbestos-injury lawsuit, BASF and Cahill concealed, 

destroyed, and lied about the presence of asbestos in their 

products. What could be more important to a claim that talc 

caused asbestos disease than proof that the talc contained 

asbestos? True, even with that evidence, Williams still had 

other elements to prove. All other things equal, however, 

Williams’s case against BASF would have been much stronger 

if she had evidence that BASF’s products contained asbestos. 

Moreover, the complaint contains allegations that Williams 

incurred costs and expenses attempting to litigate around the 

missing evidence. That allegation is not a legal conclusion but 

rather a fact from which one could conclude that Williams was 

harmed in her underlying case. 

The allegations are not rendered implausible by reference 

to the conduct of the plaintiffs’ lawyers in the underlying suit, 

as defendants argue. The crux of this theory is that plaintiffs’ 

lawyers did not actually believe BASF’s representations that 

its products did not contain asbestos and thus their clients could 

not have relied on those representations. For example, 
30

notwithstanding the fact that BASF represented to Williams’s 

lawyers that its products did not contain talc, Williams’s 

lawyers filed subsequent asbestos-injury cases against BASF 

on behalf of other plaintiffs. Thus, according to BASF and 

Cahill, plaintiffs could not have relied on the misstatements in 

prosecuting their cases because their lawyers did not rely on 

them.

We do not accept this argument. First, plaintiffs’ lawyers 

are not the plaintiffs themselves. A plaintiff, not his or her 

lawyer, must decide whether to initiate litigation or to end it. 

See, e.g., N.J. Rules of Professional Conduct 1.2(a). So 

whatever a lawyer does on behalf of another client proves little, 

if anything, about the beliefs of a different client. Second, this 

is a motion to dismiss. Courts must accept as true the plaintiffs’ 

allegations and draw inferences in the plaintiffs’ favor. 

Inferring from plaintiffs’ choice of counsel unfavorable facts 

about plaintiffs’ beliefs runs contrary to this rule. Third, as 

noted, the tort of spoliation requires a plaintiff to prove he or 

she was harmed in the underlying action by having “to rely on 

an evidential record that did not contain the evidence defendant 

concealed.” Rosenblit, 766 A.2d at 758. The tort does not 

require reliance on an adversary’s representations. Indeed, a 

lawyer or litigant who destroys or conceals evidence may be 

liable even if he or she makes no representations to his or her 

adversaries at all. 

In sum, the plaintiffs have alleged far more than a “sheer 

possibility” that BASF and Cahill injured them. Cf. Iqbal, 556 

U.S. at 678. Indeed, the complaint states enough facts 

regarding the consequences of defendants’ spoliation that it has 

raised “a reasonable expectation that discovery will reveal 

evidence” that plaintiffs have been harmed by BASF and 
31

Cahill’s misconduct. See id. Accordingly, we reverse the 

District Court’s dismissal of this claim.

D. The Complaint does not allege an actionable claim for 

N.J. RICO. 

The District Court correctly dismissed Williams’s N.J. 

RICO claim. Williams contends that BASF and Cahill injured 

her by operating a RICO enterprise and by conspiring to 

operate a RICO enterprise. Because Williams and the other 

plaintiffs have not alleged that they suffered an injury to their 

property, as they must, we affirm. 

1. Standard

In New Jersey, it is unlawful “to conduct or participate, 

directly or indirectly, in the conduct of [an] enterprise’s affairs 

through a pattern of racketeering activity.” N.J. Stat. § 2C:41-

2(c). The New Jersey RICO statute also forbids a person from 

conspiring to do the same. N.J. Stat. § 2C:41-2(d). Further, 

New Jersey confers a private right of action on “any person 

damaged in his business or property by reason” of a RICO 

violation. N.J. Stat. § 2C:41-4. Accordingly, those injured by 

racketeering activity may recover in civil actions. 

2. Analysis

New Jersey courts have not decided whether interference 

with the litigation of personal injury claims amounts to an 

injury to “business or property” within the meaning of New 

Jersey’s RICO statute, N.J. Stat. § 2C:41-4. We believe that the 

New Jersey Supreme Court would not construe “business or 

property” to include interference with the litigation of personal 

injury claims. 
32

Injuries to one’s business or property differ from injuries to 

one’s person. Thus, in construing the federal RICO law, this 

Circuit has rejected the argument that personal injuries qualify 

as RICO injuries to “business or property.” See, e.g., Maio v. 

Aetna, Inc., 221 F.3d 472, 483, 492 (3d Cir. 2000). That said, 

Williams does not contend that the asbestos injury gives rise to 

a RICO claim, but rather that BASF interfered with her attempt 

to recover for the earlier personal injury. Under New Jersey 

law, this difference does not save the claim. New Jersey’s 

Appellate Division has observed that “an inchoate personal 

injury claim, unlike some other rights to sue, is not a property 

right.” Amato v. Amato, 434 A.2d 639, 642 (N.J. Super. Ct. 

1981). Indeed, “[t]he nonassignability of a right of action for 

tortious personal injury, because it is not a property right, is an 

ancient concept of the common law recognized in [New 

Jersey].” Id; see also Landwehr v. Landwehr, 545 A.2d 738, 

742-44 (N.J. 1988) (deciding that personal injury awards for 

pain, suffering, and disability were not marital property 

eligible for distribution in divorce).

Because unliquidated personal injuries claims are not 

“property” in New Jersey, interference with a personal injury 

claim does not constitute an actionable harm under New 

Jersey’s RICO statute. The parties point to no New Jersey state 

court decision that uses a broader definition of property for 

New Jersey’s RICO’s statute than used in Amato. And just as 

the words “business or property” have “restrictive 

significance” in the federal civil RICO statute, see Maio, 221 

F.3d at 483, so too do these words narrow the types of injuries 

contemplated by New Jersey’s statute. 

Because Williams has not alleged an injury to “business or 

property” as required by N.J. RICO, we affirm the District 

Court’s dismissal of the N.J. RICO claim. 
33

E. The claims against the individual defendants.

Glenn Hemstock, Arthur A. Dornbusch, II, and Thomas 

Halket, former Engelhard employees, separately contend that 

the complaint should be dismissed as to them. In addition to 

joining the other defendants’ arguments for dismissal, they 

argue that the complaint has failed “to state with particularity 

the circumstances constituting fraud or mistake.” Fed. R. Civ. 

P. 9(b). The District Court, having dismissed the complaint on 

other grounds, never considered these theories. Because the 

parties have not focused on them on appeal, we decline to 

decide them in the first instance. 

We do, however, reject the argument raised by Thomas D. 

Halket that his innocence compels dismissal. That argument 

rests on three assertions: First, Halket “separated from the 

company in 1986, years before the plaintiffs even filed their 

lawsuits.” Hr’g Tr. 105:09-11 (March 13, 2014). Second, 

Engelhard did not conceal any evidence during the only 

asbestos litigation that occurred during Halket’s tenure. Third, 

“it’s only what happened later in litigation that was filed years 

after he left the company that . . . the company’s conduct 

becomes even arguably problematic.” Tr. 106:17-20. 

To accept Halket’s argument, however, is to reject the 

factual allegations of the complaint. Plaintiffs have alleged that 

Halket organized the effort to conceal and destroy evidence 

after the Westfall case. Though Halket may have ended his 

employment with Engelhard, the Complaint, construed in the 

light most favorable to Williams, does not support the further 

inference that Halket bears no responsibility for what he set in 

motion. Of course, discovery may exonerate Halket and, in any 

event, he will have the opportunity to contest the truth of those 

allegations in a later stage of the lawsuit. But on a motion to 

dismiss, a court may not accept a defendant’s factual 
34

representations that he has been wrongly accused when the 

plaintiff has averred otherwise. See Fed. R. Civ. P. 8(a). 

Accordingly, we may not look past the pleadings to affirm 

the dismissal of the claims against Halket. We leave it for the 

District Court to determine whether the remaining fraud and 

fraudulent concealment claims have been particularly pled 

against Halket, Hemstock, and Dornbusch.

IV. Relief

The final issue on appeal concerns the appropriateness of 

Williams’s requested relief. Recall that Williams requested a 

wide variety of relief, ranging from an injunction against 

further spoliation to a declaration that, in future cases, the 

statute of limitations would not bar plaintiffs from recovery. 

The District Court decided that certain of Williams’s requested 

relief created jurisdictional or justiciability problems. The 

District Court dismissed Williams’s request for declarations, 

injunctions, rulings, or “orders intended to impact Plaintiffs’ 

ability to pursue as-yet unfiled claims.” App’x 25. The District 

Court reasoned that the Anti-Injunction Act barred it from 

entertaining much of the requested relief because it invited the 

District Court to interfere with past lawsuits. In the alternative, 

and specifically with respect to declarations or injunctions that 

might affect future lawsuits, the District Court concluded that 

it lacked a case or controversy to adjudicate.

We consider both the District Court’s Anti-Injunction Act 

ruling and its decision regarding justiciability.

A. The Anti-Injunction Act

The Anti-Injunction Act limits the power of federal courts 

to interfere with state court proceedings: 
35

A court of the United States 

may not grant an injunction 

to stay proceedings in a 

State court except as 

expressly authorized by Act 

of Congress, or where 

necessary in aid of its 

jurisdiction, or to protect or 

effectuate its judgments. 

28 U.S.C. § 2283. “The statute . . . ‘is a necessary concomitant 

of the Framers’ decision to authorize, and Congress’ decision 

to implement, a dual system of federal and state courts.’” Smith 

v. Bayer Corp., 131 S. Ct. 2368, 2375 (2011) (quoting Chick 

Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988)). As such, 

the statute is designed to “forestall the inevitable friction 

between the state and federal courts that ensues from the 

injunction of state judicial proceedings by a federal court.” 

Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630 (1977).

The District Court viewed the Anti-Injunction Act as a bar 

to “the Court’s very power over th[e] action” and, therefore, 

considered its application from the outset. App’x 19. It need 

not have done so. While the Act constrains federal courts, 

“[t]he Act is not strictly jurisdictional; it merely deprives the 

federal courts of the power to grant a particular form of 

equitable relief.” Gloucester Marine Ry. Corp. v. Charles 

Parisi, Inc., 848 F.2d 12, 15 (1st Cir. 1988) (citing Smith v. 

Apple, 264 U.S. 274, 278-79 (1924)). Thus, the Anti-Injunction 

Act would be an appropriate basis for dismissal only insofar as 

it barred Williams from stating a claim upon which relief could 

be granted. 

The Anti-Injunction Act does not bar Williams’s requested 

relief. The Act applies to a narrow set of circumstances: 
36

“[W]hen (1) a court of the United States (2) grants an 

injunction (3) to stay proceedings (4) in a state court.” U.S. 

Steel Corp. Plan for Emp. Ins. Benefits v. Musisko, 885 F.2d 

1170, 1175 (3d Cir. 1989). Those circumstances do not exist 

here because there are no ongoing proceedings in a state court 

with which the District Court’s judgment would interfere. 

Accordingly, § 2283 “has no application.”3 Thus, while the 

Supreme Court has admonished that “[p]roceedings in state 

courts should normally be allowed to continue unimpaired by 

intervention of the lower federal courts,” the named plaintiffs 

in this case have no other proceedings pending anywhere. See 

Atl. Coast Line R.R. v. Brotherhood of Locomotive Eng’rs, 398 

U.S. 281, 287 (1970). Perhaps in the future the parties to this 

case will return to state court in an effort to reactivate their 

concluded proceedings. But they have not yet done so, and the 

Act aims to avoid “needless friction between state and federal 

courts” not to prevent a district court from deciding issues that 

 

3 17A CHARLES ALAN WRIGHT, ET AL., FED. PRAC. & 

PROC. § 4222 (3d ed. 1998); see also Dombrowski v. Pfister, 

380 U.S. 479, 484 n.2 (1965) (noting that Anti-Injunction Act 

does “not preclude injunctions against the institution of state 

court proceedings, but only bar[s] stays of suits already 

instituted”); ERWIN CHEMERINSKY, FEDERAL 

JURISDICTION 768 (6th ed. 2012) (“[T]he act applies only if 

there are proceedings actually pending in the state courts; it 

does not prevent federal courts from issuing injunctions in the 

absence of ongoing state court litigation.”); LARRY W. 

YACKLE, FEDERAL COURTS 492 (3d ed. 2009) (The Act 

“protects judicial proceedings only if they are already pending 

when a federal court is asked to take action.”).
37

may affect future state court litigation. See Okla. Packing Co. 

v. Okla., Gas & Elec. Co., 309 U.S. 4, 9 (1940).

Acknowledging that no state court proceedings are 

currently pending, BASF and Cahill assert that the AntiInjunction Act further prohibits the District Court from acting 

to “deprive [past] state-court judgments of legal significance.” 

(BASF Br. 18.) None of the decisional law cited by BASF and 

Cahill supports this argument.

First, in Hill v. Martin, cited by BASF, a pre-New Deal 

Supreme Court opined that the Anti-Injunction Act “applies 

not only to an execution issued on a judgment, but to any 

proceeding supplemental or ancillary taken with a view to 

making the suit or judgment effective.” 296 U.S. 393, 403 

(1935) (footnote omitted). That comment appears to address 

which types of state court proceedings may not be enjoined. 

(The answer: any type.) But Hill does not constrain the District 

Court because this case does not feature ongoing state court 

proceedings of any type. 

Second, BASF and Cahill reference Atlantic Coast Line for 

the idea that the district courts may not sidestep the AntiInjunction Act by preventing the parties from using “the results 

of a completed state proceeding.” 398 U.S. at 287. Atlantic 

Coast Line did not, however, expand the Act to circumstances, 

like this one, where the named plaintiffs have no ongoing state 

court cases. Rather, Atlantic Coast Line focused on the 

impropriety of a federal court nullifying an active and 

continuing state-court order. Id. Neither BASF nor Cahill has 

identified any active orders from the asbestos-injury suit. To 

the contrary, it appears that those cases simply ended with 

dismissals. Accordingly, Atlantic Coast Line does not 

constrain the District Court because there are no continuing 

state court orders with which the District Court could interfere. 
38

Third, in U.S. Steel, also cited by BASF and Cahill, this 

Court disapproved of a district court’s declaratory judgment 

that conflicted with a state appellate court’s ruling on the same 

issue between the same parties. See 885 F.2d at 1176. The 

panel reasoned that “[t]he practical result of the district judge’s 

order . . . was to cast doubt on the effectiveness of the [state 

appellate court’s] ruling and on any judgment that might result 

from it.” Id. at 1175. Unlike this case, however, U.S. Steel

involved ongoing state litigation. The case there had traveled 

from the state trial court to the appellate court and back again, 

and the federal court intervened in the midst of the remand. 

Thus, “[t]he district court’s order could [have] effectively 

prevent[ed] the state trial judge from proceeding in accordance 

with the Superior Court’s direction.” Id. The District Court’s 

orders in this case could not have such an effect because the 

state court litigation ended long ago.

At bottom, BASF and Cahill appear to construe § 2283 to 

forbid federal courts from criticizing completed state 

proceedings. The statute enshrines no such rule. Of course, as 

defendants themselves note, a state-court loser may not appeal 

his judgment to a federal district court. See Lance v. Dennis, 

546 U.S. 459, 464 (2006) (discussing Rooker-Feldman 

doctrine). But § 2283 does not purport to displace doctrines, 

such as res judicata, that might guide a federal court’s analysis 

of the effect to be given a past ruling of a state court. It cannot 

be, as BASF and Cahill imply, that when a federal court 

decides that the claim before it has not been precluded by a 

prior state court judgment, it has thereby violated the AntiInjunction Act by limiting the effect of the prior state court 

judgment. Nor can it be that when a new federal suit seeks 

redress for harms suffered during old state proceedings, but not 

because of them, the Anti-Injunction Act stands in a federal 
39

court’s way. To use the Anti-Injunction Act in this way would 

be new, burdensome, and incorrect.

B. Justiciability 

In the alternative, the District Court concluded that 

Williams could not obtain certain declaratory and injunctive 

relief because she had not presented the court with a justiciable 

controversy. With respect to the relief targeted at solely legal 

issues anticipated in future cases, we affirm.

A plaintiff must establish a justiciable case or controversy 

with respect to each form of relief he or she seeks. See City of 

Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983). Thus, even 

when a plaintiff has a claim for damages, in order to obtain 

prospective relief, he or she must establish standing to do so. 

See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210-11 

(1995); see also 28 U.S.C. § 2201 (Declaratory Judgment Act 

remedies). “To have standing to sue under Article III,” a 

plaintiff must identify “(1) a cognizable injury that is (2) 

causally connected to the alleged conduct and is (3) capable of 

being redressed by a favorable judicial decision.” Pa. Family 

Institute, Inc. v. Black, 489 F.3d 156, 165 (3d Cir. 2007); Lujan 

v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). 

Moreover, the judicial power does not extend to hypothetical 

disputes, and federal courts may not “give opinions advising 

what the law would be upon a hypothetical state of facts.” 

Chafin v. Chafin, --- U.S. ----, 133 S. Ct. 1017, 1023 (2013) 

(alterations and quotation marks omitted). And in order to be 

justiciable, a claim must be ripe for review. Ohio Forestry 

Ass’n v. Sierra Club, 523 U.S. 726, 732-33 (1998).

We see two defects in William’s requested relief.

First, Williams runs afoul of the rule that “a litigant may 

not use a declaratory-judgment action to obtain piecemeal 
40

adjudication of defenses that would not finally and 

conclusively resolve the underlying controversy.” 

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 n.7 

(2007). Williams requests declarations (or injunctions) 

determining rights and defenses available to BASF and Cahill 

in future proceedings. This relief, however, invites the District 

Court to wade into a legal conflict that is not before it—the 

viability of a particular plaintiff’s asbestos-injury claim against 

BASF. Under Article III, plaintiffs may not seek a judgment 

that “would merely determine a collateral legal issue governing 

certain aspects of their pending or future suits.” Calderon v. 

Ashmus, 523 U.S. 740, 747 (1998). A declaration from the 

District Court about the preclusive effect of past judgments, for 

example, might determine whether BASF’s past judgments 

were “valid” and, therefore, preclusive. See, e.g., Mortgagelinq 

Corp. v. Commonwealth Land Title Ins. Co., 662 A.2d 536, 346 

(N.J. 1995) (noting that a judgment must be valid and final in 

order to have preclusive effect). But that declaration would not 

decide BASF’s liability to a particular plaintiff for a particular 

asbestos injury. In this way, Williams’s request resembles that 

of a prisoner who sued to prevent the state from invoking an 

affirmative defense in an anticipated, but unfiled, § 1983 claim. 

Ashmus, 523 U.S. at 747-59. In this case and in that one, the 

plaintiff asks the trial court to determine in part what would be 

litigated in full on a later date.

Second, and relatedly, issues that may arise in state court 

asbestos-injury litigation are not ripe for review. BASF and 

Cahill have not asserted any defenses to plaintiffs’ asbestosinjury claims and, in fact, the named plaintiffs to this suit have 

not brought any such claims. We see no hardship to parties 

imposed by refusing to answer these questions now, as 

plaintiffs likely will not face state court defenses until they file 

or seek to re-active their state court cases. Moreover, these 
41

questions are abstact at this stage. The identity of the parties, 

the nature of the claims and defenses, and the substantive law 

to be applied are all unknown. Thus, although the parties 

certainly have adverse interests on these matters, an injunction 

or declaration about future legal defenses would not provide a 

conclusive resolution of an existing controversy. The issues 

are, therefore, unripe. See Pic-A-State Pa., Inc. v. Reno, 76 

F.3d 1294, 1299-1300 (3d Cir. 1996); see also MedImmune,

Inc., 549 U.S. at 128 n.8 (observing that these sorts of 

justiciability problems may be characterized as problems of 

either “standing” or “ripeness”).

We conclude that Williams may not seek in this suit a 

determination of a legal issue anticipated in subsequent 

proceeding. Accordingly, we affirm the District Court’s 

dismissal of Williams’s claims to declaratory or injunctive 

relief to the extent Williams seeks to enjoin BASF and Cahill 

from invoking res judicata, laches, statute of limitation 

doctrines, or other similar issues, in future proceedings before 

other courts. That said, we see no constitutional barrier to the 

District Court ordering a notice program or enjoining 

defendants from further spoliation if the proofs warrant the 

relief. 

V. Conclusion

The District Court dismissed each of Williams’s claims, 

including the N.J. RICO, fraud, and fraudulent concealment 

claims contested here. With respect to the fraud and fraudulent 

concealment claims, the District Court erred. The New Jersey 

litigation privilege does not immunize systematic fraud 

directed at adversarial parties and the courts. The tort of 

fraudulent concealment, which encompasses claims of 

spoliation, does not require Williams to prove that she would 
42

have prevailed on the merits of her asbestos-injury case. The 

alleged facts of harmful reliance suffice to state the claim.

With respect to the District Court’s conclusion that it would 

be unable to order Williams’s requested relief, we reverse in 

part and affirm in part. To the extent that Williams’s relief 

invites the District Court to decide matters to be raised in other 

litigation, Williams has not presented a justiciable controversy 

for which that relief would be appropriate. To the extent that 

Williams seeks remedies for the alleged fraud and spoliation, 

including declaratory and injunctive relief, the District Court is 

not barred by the Anti-Injunction Act from providing them.

We remand for further proceedings. We also direct the 

parties to inform the District Court of any developments in 

state court proceedings that might be pertinent to the exercise 

or abstention of its jurisdictional authority.