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March 20, 2001


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


On remand from the Court of Appeals, this Court is again presented with the question whether a French corporation and its American subsidiary may properly invoke the anti-trust laws of the United States to challenge the conduct of another French corporation, albeit an independent public legal body, whose conduct, the plaintiff alleges, violates the Sherman Act, 15 U.S.C. § 2. The case is before the Court on the defendants' motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.Pro. 12(b)(1).


The factual background of this case is discussed in two prior opinions, Filetech S.A.R.L. v. France Telecom, 978 F. Supp. 464, 466 (S.D.N.Y. 1997), vacated and remanded Filetech S.A. v. France Telecom, 157 F.3d 922 (2d Cir. 1998). While familiarity with these opinions is assumed, the following discussion will benefit from a restatement of the facts.

The plaintiff, Filetech S.A. ("Filetech"), formerly known as Filetech S.A.R.L., is a French corporation established by a Frenchman, Guy Birenbaum, for the purpose of assembling a database of information from which to sell marketing lists. Filetech primarily sells data collected in France to French businesses, though, as this lawsuit makes clear, it aspires to penetrate additional markets. To that end, Filetech incorporated Filetech U.S.A., Inc. in 1994 in the State of New York to handle the parent company's nascent U.S. operations. Filetech has registered its business office in the State of New Jersey, though according to the record no business has been conducted there. I will refer to the corporations collectively as "Filetech" or "plaintiff."

The defendant, France Telecom S.A. ("France Telecom"), is a French corporation with its principal place of business in France. At the time the complaint was filed, France Telecom was an independent public legal entity, wholly owned and operated by the Republic of France, controlling all telephone facilities in the Republic. Directives of the European Union have subsequently ended this monopoly and required the government of France to reduce itself to majority shareholder status in what is now a publicly traded company. France Telecom, Inc. is the wholly owned subsidiary of France Telecom, incorporated in the State of New York with its principal place of business there.

France Telecom engages in commercial activities beyond the provision of telephonic service to the people of France. Among other things, France Telecom allows access to its data base of telephone subscribers for the purpose of developing marketing lists. Such access, however, is burdened by the existence of the "Orange List," a subject of some controversy in this dispute.

The Orange List came into existence as the result of French statutes and regulations. In January 1978 the French legislature enacted the Data Processing and Individual Rights Law ("the Act") which created the Data Processing and Individual Rights National Commission, popularly known as "CNIL." CNIL regulates public and private data processing activities. The Act also set forth substantive and procedural rules on processing this data. Pursuant to Article 26 of the Act, any individual may in good faith refuse to allow personal data bearing on him or her to be computer processed. Breach of this Article is punishable under the French penal code. Consistent with the Article, French law permits French residents to prevent inclusion of their names on commercial mailing lists.*fn1 Pursuant to this law, France Telecom is required to maintain a current list of telephonic subscribers who do not want their names used for marketing purposes. This compilation of names is called the Orange List.

France Telecom maintains that it is forbidden by French law from disclosing the names of the individuals on the Orange List, and it has accordingly refused to give Filetech, or any other requester, such information.*fn2 Instead, France Telecom offers services which allow customers to purchase information from its database purged of the Orange List entries. Filetech has long argued that such a position ensures a monopoly for France Telecom, since no other data base provider has possession of the Orange List, without which no other provider can be kept apprized of which French residents may have requested to be placed on the List or, for that matter, taken off it. Without a regularly updated copy of the Orange list, says Filetech, no company in the commercial mailing list business can safely market its services without the risk of violating French law. The Orange List is akin to a map indicating the placement and movement of land mines in a desert; without the map, no one dares to traverse the territory. Currently, Filetech argues, France Telecom alone has a regularly updated copy of that "map," without which Filetech is prevented from competing against France Telecom in the marketing list business.*fn3

In addition to the case at bar, Filetech has commenced numerous legal actions in France against France Telecom. That litigation, some of it begun nearly a decade ago, appears to be unresolved.*fn4 It is sufficient for present purposes to note, as did the Second Circuit, that "as far as this Court can tell, based in part on a lack of final decisions on the merits and on the seemingly conflicting dictates of French judicial and regulatory authorities, it remains unsettled in France what conduct is permissible on the part of France Telecom S.A. and Filetech S.A. with respect to the marketing lists business." Filetech S.A., 157 F.3d at 928.

Until recently, France Telecom had made data from its list of subscribers available to third parties principally through two services, "Teladresses" and "Marketis."*fn5 Since the telephone directories themselves contain the Orange List names, only these two services perform the function of purging such entries and delivering a legally acceptable list to customers. Marketis is a service accessible through either a personal computer equipped with a modem, or through "Minitel," a terminal provided by France Telecom to its customers upon request. Through either of these two methods a tailored list purged of Orange List names can be created. Teladresses is a non-electronic service enabling a customer to order from France Telecom a list with specific, tailored information. France Telecom generates the list, purged of the Orange List entries, and sends it to the customer with a bill for services. According to France Telecom, Marketis is designed for those looking to compile small lists, while Teladresses allows for the compilation of millions of entries.

Though for a time Filetech was apparently able to circumvent this system requirement, France Telecom limits free access through Minitel to three minutes, in part to prevent massive, costless downloading of its information. In other words, companies seeking to create large scale databases of information from the telephone directory are left with no alternative but, in one way or another, to compensate France Telecom for its services. Because acquisition of a comprehensive, regularly updated, cleansed list from France Telecom, through Teladresses, would allegedly cost millions of dollars, Filetech contends that this regime prevents competition in the market. Filetech, since the inception of this litigation, repeatedly alleges that France Telecom's monopolistic behavior, in refusing to supply others with the Orange List, constitutes a violation of French and U.S. law.


In 1995 Filetech filed suit in this Court against France Telecom, charging it with monopolization in violation of the Sherman Act. 15 U.S.C. § 2. Filetech seeks treble damages and injunctive relief from France Telecom's alleged restraints on trade in the United States. Filetech also demands access to France Telecom's directory without paying the charges normally incurred through the use of Marketis or Teladresses.

On June 5, 1995 France Telecom moved to dismiss the complaint, pursuant to Fed.R.Civ.Pro. 12(b),*fn6 the doctrine of international comity, and because the district court lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C.A. § 1605(a)(2), and the Sherman Act, as amended by the Foreign Trade Antitrust Improvements Act ("FTAIA"), 15 U.S.C.A. § 1, 6a (West 1997).

On September 15, 1997 this Court dismissed Filetech's complaint. Though concluding that Filetech's allegations, while "sparse and largely conclusory," satisfied the standards for jurisdiction imposed by the FSIA and the FTAIA, the Court declined jurisdiction on the grounds of international comity. Filetech S.A.R.L., 978 F. Supp. at 482.

In 1998 the Court of Appeals vacated that holding and remanded the case to this Court with instructions that the Court first determine whether subject matter jurisdiction exists, prior to considering the question of international comity. Filetech S.A., 157 F.3d at 932. The Second Circuit said that "[i]t appears to us that the case at bar presents substantial and unresolved questions in regard to jurisdiction over France Telecom under the FSIA, the FTAIA and the caselaw governing Sherman Act jurisdiction." Id. at 931. The Court continued as follows:

[I]t was error for the district court to accept the mere allegations of the complaint as a basis for finding subject matter jurisdiction . . . . In these circumstances, the court should have looked outside the pleadings to the submissions. The district court should consider all the submissions of the parties and may hold an evidentiary hearing, if it considers such a hearing is warranted, in resolving the question of jurisdiction. Before arriving at its legal conclusion regarding the existence vel non of subject matter jurisdiction, the district court should resolve the disputed factual matters by means of findings of fact.

Id. at 930-31.

Following this ruling by the Second Circuit, this Court directed the parties to conduct discovery on the question of subject matter jurisdiction. Following completion of that discovery, defendants now move to dismiss the case for lack ...

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