The opinion of the court was delivered by: WEINFELD
This action was instituted by plaintiff, an independent oil producer with an interest in oil fields in Libya, against the seven largest oil producers of the world and three independents, including the defendant Gelsenberg Aktiengesellschaft ("Gelsenberg"). Centering upon an agreement entered into on January 15, 1971 by the parties to this litigation ("Libyan Producers Agreement" or "Agreement"), the complaint charges the defendants with antitrust violations upon various claims and also with breach of the Agreement.
Gelsenberg moves to dismiss the complaint on the grounds that, as to it, (1) the court lacks jurisdiction; (2) venue in this district is improper; and (3) process and service of process was insufficient.
Gelsenberg is a West German corporation with its principal place of business in Essen. Gelsenberg's business, aside from any dealings related to the Libyan Producers Agreement, is conducted wholly outside the United States. Thus, the basis for this court's jurisdiction, if any, must be found in the contacts which Gelsenberg had in New York within this district in connection with the Agreement.
Upon the complaint and affidavits submitted on this motion, including those offered by defendant Gelsenberg, it is beyond cavil that the Libyan Producers Agreement, negotiated in the main in this district, was of vital concern to each of the parties thereto. The Agreement reflected a unified effort to resist constantly increasing demands made upon the defendants by the Libyan and Persian Gulf oil producing countries who were members of the Organization of Petroleum Export Countries ("OPEC"). The latter organization represented the combined force of all the major oil producing governments in the Middle East, North Africa, Venezuela and Indonesia. To bolster the united front negotiating stance contemplated by the Agreement, a support provision was incorporated under which oil would be supplied by those parties with Persian Gulf sources to any party whose supply was cut off by the Libyan government. This provision was particularly important to Gelsenberg because Gelsenberg was an independent Libyan producer.
Gelsenberg's representatives, Dr. Enno Schubert, a member of its Executive Board, and Dietrich von Auwers, a senior staff member, travelled from its headquarters in Essen, Federal Republic of Germany, to New York City, where, on January 14, 1971, they joined a meeting already in progress for some days prior thereto, during which the terms of the proposed Agreement had been exhaustively negotiated by the participants. Gelsenberg's representatives there received the final draft of the "Libyan Producers Agreement," which obviously was examined and considered by them, and which Dr. Schubert signed the next day in Washington, D.C. on behalf of Gelsenberg.
While Gelsenberg urges that its presence in this district and the activities of its representatives on January 14, 1971 were minimal, there were other contacts and activities in this district thereafter directly related to the Agreement and its implementation. Thus, although the original Agreement was not executed by Gelsenberg in New York, three related memoranda which subsequently reaffirmed and amplified upon the provisions contained therein were signed by Gelsenberg's representative in New York City. On October 18, 1971, in New York City, Gelsenberg entered into a Memorandum of Intent with the other parties to the original Agreement which, in effect, renewed the parties' commitment to "consider collectively the responses to be made to the government's demands."
At the same meeting, Gelsenberg's representative also signed a Memorandum of Confirmation which was crucial to Gelsenberg's business interests as a producer whose sole source of oil was in Libya because the purpose of this memorandum was to specify that certain activities of the Libyan government would activate the original Agreement and, in turn, the supply provision under which Gelsenberg was to receive Persian Gulf oil if its Libyan supply was cut off. This supply mechanism was of vital interest to Gelsenberg as a Libyan oil concessionaire. It sent its representative back to New York City on December 16, 1971 to execute a Further Memorandum of Confirmation, which incorporated into the original Agreement any
"total or partial nationalization of the properties of any party hereto by the Libyan Government in contravention or breach of the applicable provisions of the Petroleum Law or the terms of any of the concession agreements of such party . . . . "
In addition to the execution of such Memoranda relating to the Agreement, various meetings were conducted in New York City to consider implementation and administration of the basic agreements. There were many such meetings and no contention is made that Gelsenberg attended all. However, Gelsenberg freely admits "the presence of its representatives at occasional meetings in New York." Gelsenberg does not deny, as plaintiff alleges, that Gelsenberg representatives attended at least fifteen meetings in New York between January 25, 1971 and September 6, 1973, all of which pertained to implementation or administration of the Libyan Producers Agreement. The details of some of these meetings indicate the vital concern which Gelsenberg had with such dealings in New York.
In early March 1971, in New York City, Gelsenberg's representative, Dr. Schubert, who was a member of the Tripoli Negotiating Team, previously appointed to further the interests of the parties to the Agreement, reported the results of the Team's negotiations with the Libyan government.
Another meeting was held at New York City on October 11, 1971 of the London Administrative Group, of which Gelsenberg was a member. Its representatives, Dr. Schubert and von Auwers, participated in that meeting. The subject matter was the Libyan Producers Agreement and the renewed demands by OPEC as to which the participants agreed that "full consideration should be given to the question whether concerted industry action was needed in order effectively to resist the demands in respect of currency parities which amounted to demands for increases in the companies' payments."
A study group was appointed to consider these demands and to make recommendations on enumerated items, including "whether common action by the companies was needed." A representative of Gelsenberg was a member of the study group.
In addition, according to the affidavit of Mr. von Auwers submitted on behalf of Gelsenberg, a Gelsenberg representative participated in New York in October 1972 in the work of an ad hoc committee established under the Libyan Producers Agreement. The function of this committee was to gather facts and data for use by the negotiating teams in their deliberations with the Libyan government.
The general nature of the activities of representatives of the signatories to the Agreement is described by John J. McCloy, who acted as counsel for all the parties in obtaining clearances from the Department of Justice with respect to their concerted activities. In a letter to the Assistant Attorney General, United States Department of Justice,
in detailing these activities, many of which took place within this district, he summed it up: "From time to time, when important ...