letter as a motion to dismiss for lack of personal jurisdiction and, alternatively, for summary judgment. Plaintiff responded they it has not yet conducted discovery with the Codinas. Thus, the court addresses solely whether it may exercise jurisdiction over the Codinas.
The alleged role of the various parties and the background facts of this dispute have been described in detail in the court's previous opinion. 817 F. Supp. at 328-30. The papers show, in summary, the following scheme to defraud and acts by Kuehn and the Codinas.
A. The scheme to defraud
Plaintiff manufactures and holds patents in the United States, Canada, and the United Kingdom for a vision training device that, using the principles of biofeedback, allows a patient to improve visual focusing ability.
Its principal, Dr. Joseph N. Trachtman, entered into a distribution agreement in 1987 with defendant George Jordan, granting his company, Kolinor, exclusive rights to distribute the device in the European Economic Community, Israel, and North Africa. Kolinor entered into a sub-distribution agreement with, among others, Codina, granting him the exclusive right to distribute plaintiff's vision trainer in Spain and Portugal. Each of those agreements expired at the end of 1989.
The papers, construed most favorably to plaintiff, show that beginning in late 1989, Jordan and others engaged in a scheme to manufacture and market a competing vision device using plaintiff's technical secrets, to conceal that scheme from plaintiff through a series of deceptive wire and mail communications, and to conceal that scheme from this court in the course of a preliminary injunction hearing.
B. Kuehn's role
Kuehn first met Jordan in early 1989, when Kuehn was an associate attorney at the New York law firm of Cutner & Rathkopf. In May 1989, Kuehn left that firm and established his own practice in New York. His sole client was Kolinor.
During the following months, he negotiated with plaintiff regarding a plan whereby plaintiff would license Kolinor to manufacture the vision trainer. These negotiations failed.
During that same summer, Kuehn also advised Kolinor regarding its plan to distribute optical equipment in the United States manufactured by an Italian company named Sbizza. Kuehn referred Jordan to defendant Patrick G. McGarry, whose company, defendant Worldwide Regulation Services, Ltd., specialized in international regulatory matters.
By October 1989 Kolinor decided to develop its own vision training device rather than renew its distribution contract with plaintiff. Jordan told Kuehn that he would seek to obtain financing from Gottesman, an investor living in Switzerland who had provided Kolinor with start-up financing.
Kuehn spoke by telephone with Jordan and Gottesman in October, advising them that Kolinor's contract with plaintiff contained confidentiality and non-competition clauses and that plaintiff enjoyed certain patent protections. Soon thereafter, with Kuehn's assistance, Kolinor retained patent counsel in the United States to obtain and analyze plaintiff's patents.
On November 29th, at McGarry's suggestion, Jordan and Kuehn travelled to Chicago for the purpose of examining "optical exhibitors" they expected to see at a medical exhibit. This visit was presumably related to the Sbizza project, but it evidently gave Jordan and Kuehn an opportunity to discuss Jordan's plan to manufacture a competing vision trainer.
In a facsimile transmission dated December 3rd, Kuehn informed McGarry that Jordan was developing a vision trainer to compete with plaintiff's trainer, and he asked McGarry to advise Jordan how to avoid infringing plaintiff's patents.
In a facsimile transmission also dated December 3rd, Kuehn suggested to Jordan that he, Kuehn, would give plaintiff the impression in contract negotiations that Kolinor was eager to distribute plaintiff's trainer. This would mask Jordan's scheme to manufacture the competing device.
The letter also examined the legal risks of Jordan's scheme. It stated:
6. The vision training device which is being developed will use some of the technology and method which was used in the Biofeedtrac AVT. At this time, it is not clear whether this technology and method is the property (through patents) of Biofeedtrac or simply the application of other, previously known technology. . . .
11. The reaction of the Trachtmans upon learning of the new vision training device can only be guessed at and the procedure and outcome of any litigation they might commence can only be the subject of speculation. . . .