The opinion of the court was delivered by: Stanton, District Judge.
Plaintiff Information Resources, Inc. ("IRI") is a Delaware
corporation headquartered in Chicago. It provides retail tracking
services to manufacturers who sell consumer goods in the United
States. Retail tracking services:
. . involve the continuous collection of data on
the sale of consumer packaged goods. From this data,
retail tracking services suppliers produce estimates
of trends in sales of product categories and brands,
by relevant geographic region for each product
category being tracked.
In short, a retail tracking service is the
provision of information to manufacturers and
retailers of consumer goods concerning turnover,
market share, pricing and other aspects of the sale
of fast moving consumer goods and analysis of that
information to reveal market trends, business
conditions, and the like.
Def.'s 56.1 Statement ¶¶ 2-3.
Additionally, IRI participates in offering retail tracking
services through its subsidiaries and joint ventures in France
(where it owns an 89% interest in a corporation formed pursuant
to a joint venture agreement), Germany (where it owns a 51%
interest in a corporation formed pursuant to a joint venture
agreement), Great Britain (where it owns an 87% interest in a
corporation formed pursuant to a joint venture agreement), Italy
(where two holding companies wholly owned by IRI operate a
subsidiary), the Netherlands (where it owns a 51% interest in a
company formed pursuant to a joint venture agreement), and Sweden
(where it owns an 8% interest in a corporation formed pursuant to
a joint venture agreement).
IRI either has "strategic partnerships" or "relationships" with
companies offering retail tracking services in a variety of other
nations in which it claims antitrust injury, but has no ownership
interest in the foreign concerns, despite some attempts to
purchase a company already doing business in the foreign market
in order to provide retail tracking services in that market. IRI
has made plans to enter additional markets.
In those six nations in which IRI participates through a joint
venture or a subsidiary, it is the subsidiary or joint venture
which enters into agreements with the clients for provision of
services (Pl.'s Rule 56.1 Statement ¶ 27) and negotiates for the
acquisition of local data (id. ¶ 28). The subsidiary or joint
venture obtains the scanning data directly from the clients.
Id. ¶ 29. Raw data is then loaded onto computers in the offices
of the subsidiaries or joint ventures. Id. at ¶ 31. That data
is then transmitted to IRI in the United States, where it is
"normalized" (id. ¶ 33), put onto IRI's computers (id. ¶ 33),
and processed (id. ¶ 40). The processed data is generally then
sent directly back to the subsidiary or joint venture. Id. ¶
45. The subsidiary or joint venture then delivers the customer
report directly to the client. Id. ¶ 50.
Defendant A.C. Nielsen Company ("Nielsen") is an operating unit
of defendant Dun & Bradstreet, offering retail tracking services
in the United States, and in at least 80 foreign countries.
IRI contends in this lawsuit that Nielsen engaged in
anticompetitive activity by applying "favorable pricing
conditions if Nielsen's services were purchased in a considerable
number of countries, including, at least, one country where IRI
was present." Pl.'s Mem. at 5. For purposes of this motion,
Nielsen does not contest this allegation.
In this motion for partial summary judgment, defendants argue
that (1) IRI lacks standing to sue for injuries suffered in
foreign markets, because the injury was actually suffered by its
subsidiaries and joint ventures; and (2) this court lacks
jurisdiction under the Foreign Trade Antitrust Improvements Act
of 1982, 15 U.S.C. § 6a (1997) ("FTAIA"), to hear such claims in
any event, because the foreign activities of which IRI complains
are beyond the reach of United States antitrust laws.
"`Merely derivative injuries sustained by employees, officers,
stockholders, and creditors of an injured company do not
constitute "antitrust injury" sufficient to confer antitrust
standing.'" G.K.A. Beverage Corp. v. Honickman, 55 F.3d 762,
766 (2d Cir. 1995), quoting Southwest Suburban Bd. of Realtors,
Inc. v. Beverly Area Planning Ass'n, 830 F.2d 1374, 1378 (7th
IRI argues that although nominally in dependent, its
subsidiaries and joint ventures operate with IRI to provide a
unitary service which could not be performed without IRI's role.
Further, IRI contends that the injury it suffers in the form of
diminished demand for its services is cognizable under United
States antitrust laws because it is directly and intentionally
caused by defendants' anticompetitive activities.
In Associated General Contractors of California v. California
State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897,
908-10, 74 L.Ed.2d 723 (1983), the Supreme Court weighed "factors
that circumscribe and guide the exercise of judgment in deciding
whether the law affords a remedy in specific circumstances."
Id. 103 S.Ct. at 908. It considered the nature of the
plaintiff's alleged injury and its relationship to the antitrust
violation, whether the injury is of a type which Congress sought
to redress in the antitrust laws, whether the injury is direct or
indirect, whether there is ". . . an identifiable class of
persons whose self-interest would normally motivate them to
vindicate the public interest in antitrust enforcement . . ."
thereby diminishing the justification of suit by a more remote
plaintiff, the degree of speculation or complex apportionment
involved in the claim for damages, and the potential for multiple
liability of the defendant should another plaintiff bring suit.
The Court concluded (103 S.Ct. at 912):
A similar analysis of this case follows.
1. Consequential Harm and Intent to Injure
For purposes of this motion, defendants concede a causal
connection between the alleged antitrust violation and the harm
to the plaintiff, as well as their intent to injure IRI. Def.'s
Mem. at 12.
IRI contends that it is a competitor of defendants in the
foreign markets, while defendants argue that the foreign
subsidiaries and joint ventures of ...