avoidance, and AD 6 is stricken. In fact Continental's mere
denial of the amount of Indeca's damages could also permit
assertion of Indeca's own negligence, and that would
independently support the striking of AD 6.
Continental alleges the Rumex-Indeca contract was procured in
violation of the Foreign Corrupt Practices Act ("FCPA"),
15 U.S.C. § 78dd-2. It claims public policy precludes a foreign
government from recovering damages for violation of such a
FCPA prohibits domestic concerns from bribing foreign officials
to assist such concerns in obtaining business. 15 U.S.C. § 78
dd-2(a)(1). Violation of public policy has the same
confession-and-avoidance quality as Rule 8(c)'s enumerated
affirmative defenses. In addition, Continental's statement of
operative facts asserts Rumex' bribe of an Indeca employee to
obtain the contract (AD ¶¶ 12-18, 35).
True enough, Indeca points out (1) FCPA's criminal prohibition
is against the domestic concern and not the foreign agency and
(2) no case law upholds Continental's ability to base its rights
on the statute. Those factors appear to implicate the analysis of
Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26
(1975) and its progeny,*fn4 but not enough has been advanced to
require striking this defense at the threshold pleading stage.
Mohegan Tribe v. State of Connecticut, 528 F. Supp. 1359, 1362
Continental alleges Indeca has released its claims against
Continental, another enumerated Rule 8(c) defense. Once more that
facially permissible affirmative defense is legally insufficient.
In Illinois, a release is a contract by which one person abandons
claims against another. Whitehead v. Fleet Towing Co.,
110 Ill. App.3d 759, 762, 66 Ill.Dec. 449, 452, 442 N.E.2d 1362, 1365
(5th Dist. 1982). None of the facts pleaded by Continental show
any such contractual undertaking by Indeca; indeed the pleaded
facts refute any such contract (AD ¶¶ 45, 48). AD 8 is also
Continental says Indeca waived its rights against Continental,
also a proper affirmative defense under Rule 8(c). Continental's
factual allegations also comply with Rule 8(a) (AD ¶¶ 28-34).
Finally, it appears Continental may be able to prove some set of
circumstances constituting Indeca's intentional relinquishment of
its known right to hold Continental liable for the discrepancies
in documentation. Pastrana v. Federal Mogul Corp., 683 F.2d 236,
241 (7th Cir. 1982). AD 9 will stand.
Continental alleges Indeca's negligence is greater than
Continental's, thus blocking Indeca's recovery. Illinois has
adopted the "pure" form of comparative negligence (basing damages
on relative degrees of fault) and not its "modified" version
(which forecloses recovery entirely when the plaintiff is more
than 50% negligent). Alvis, 85 Ill.2d at 27-28, 52 Ill.Dec. at
35, 421 N.E.2d at 898. Consequently the discussion as to AD 6 is
fully applicable here as well, and AD 10 is stricken.
Continental alleges Indeca's laches in pursuing its claim
prevents its now seeking relief. Though permissible under Rule
8(c), that defense is not supported by the pleaded facts. Laches
involves unreasonable and inexcusable delay in filing suit.
Lingenfelter v. Keystone Consolidated Industries, Inc.,
691 F.2d 339, 340 (7th Cir. 1982). Here Indeca filed suit in 1981, less
than one year after the alleged events, and nothing else in the
pleadings (by any party) supports a laches defense. AD 11 is
Continental asserts Indeca's failure to state a claim upon
which relief can be granted. That contention has already been
determined adversely to Continental. Opinion, 530 F. Supp. at 280.
Moreover such legal insufficiency (properly assertable under Rule
12(b)(6)) is not a proper affirmative defense under Rule 8(c),
for "a true affirmative defense raises matters outside the scope
of plaintiff's prima facie case and such matter is not raised by
a negative defense. . . ." 2A Moore's Federal Practice ¶ 8.27,
at 8-260. AD 12 must also fall.
AD 1, 2, 4-6, 8 and 10-12 are stricken. Only AD 3, 7 and 9