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INFORMATION RESOURCES v. DUN & BRADSTREET CORP.

July 12, 2000

INFORMATION RESOURCES, INC., PLAINTIFF,
v.
THE DUN & BRADSTREET CORP., A.C. NIELSEN CO., AND IMS INTERNATIONAL, INC., DEFENDANTS.



The opinion of the court was delivered by: Stanton, District Judge.

Opinion and Order

I. Background

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.

II. Standing

"`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 Cir. 1987).

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.

2. Directness of Injury

IRI contends that it is a competitor of defendants in the foreign markets, while defendants argue that the foreign subsidiaries and joint ventures of ...


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