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DOW JONES & COMPANY v. HARRODS

October 11, 2002

DOW JONES & COMPANY, INC., PLAINTIFF,
V.
HARRODS, LIMITED AND MOHAMED AL FAYED, DEFENDANTS.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge

      DECISION AND ORDER

INTRODUCTION

Plaintiff Dow Jones & Company, Inc. ("Dow Jones") brought this action against defendants Harrods, Limited ("Harrods") and Mohamed Al Fayed ("Al Fayed") requesting a declaratory judgment and injunctive relief. Dow Jones seeks to preclude Harrods and Al Fayed from pursuing claims for defamation asserted in a lawsuit Harrods commenced against Dow Jones in the United Kingdom arising from the publication of an article in The Wall Street Journal (the "Journal") in April of this year. Now before the Court is a motion by Harrods and Al Fayed, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2), to dismiss the complaint. At issue is whether the federal Declaratory Judgment Act (the "DJA") may be applied for the purpose of the judgment Dow Jones seeks, or whether, assuming the DJA were properly invoked, based on the facts presented here the Court should exercise its discretion under the DJA to grant or deny declaratory relief. For the reasons discussed below, the motion is granted.

I. BACKGROUND

A. FACTS

To the question "What is in a joke?", this lawsuit gives a decidedly wooden answer: a federal case.*fn1 Beyond the purported humor that gave rise to the conflict, however, lie several serious questions entailing federal statutory and constitutional law, as well as issues of weighty international dimensions.

The action began with an April Fool's joke. Harrods, which, among various other commercial enterprises, operates the well-known department store of that name in London, England, issued a press release on March 31, 2002, headlined "Al Fayed Reveals Plan to `Float' Harrods." The release stated that Al Fayed, Harrods' Chairman and effective owner, would issue on the following day an important announcement "about his future plans for the world-famous store," including "a first-come-first-served share option offer."*fn2 Journalists seeking further comment were directed to contact "Loof Lirpa" at Harrods. In fact, "Loof Lirpa" is "April Fool" spelled backward. On April 1, 2002, the planned announcement posted on the designated website described Al Fayed's decision to "float" Harrods by building a ship version of the store to be moored in London on the embankment of the Thames River. The announcement included a limited offer of "shares in this exciting new venture." Persons who registered on the website by noon that day, "the first of April!", were promised "a share certificate."*fn3

Dow Jones read the March 31 press release as purporting to announce that Harrods planned to "float shares," i.e., a public offering of stock. It did not wait to see Harrods' actual disclosure on the announcement date. Instead, on April 1, in the print editions of the Journal in the United States, and in the Journal's website "WSJ.com.," Dow Jones published an article reporting that Harrods would disclose plans that day to publicly list the company's shares.*fn4 April Fool's joke, the Journal published a correction so advising its readers in an item that appeared in its April 2, 2002 print editions in the United States as well as on WSJ.com. Three days later, Dow Jones countered with a story it asserts was intended as the Journal's own brand of wry, light-hearted humor, the article that ultimately catapulted into the conflict now before this Court. The Journal's "Deals & Deal Makers: Bids & Offers" column on April 5, 2002 published an item entitled "The Enron of Britain?" (the "April 5 Article").*fn5 The first sentence of the April 5 Article, which appeared in the Journal's United States print edition and on WSJ.com., states that: "If Harrods, the British luxury retailer, ever goes public, investors would be wise to question its every disclosure." It then detailed the April Fool's joke, which the story reported had been mistaken by some news organizations" as an announcement of a plan to sell Harrods shares publicly. Dubbing the prank "[n]ot exactly Monty Python-level stuff," the column questioned whether Harrods could "get in trouble for messing with the facts?" by issuing the bogus press announcement.

At this point the lawyers entered. Promptly the face of comedy began to furrow and its smile to curl into what often becomes tragedy's first sour frowns and snarls: incipient litigation. As the lawyers recount the tale, Harrods apparently did not see any humor in the article, and rather took umbrage from the Journal's reference to it and Enron in the same breath. On April 10, 2002, Harrods' director of legal affairs wrote to Dow Jones officials asserting that the April 5 Article had enraged Harrods and "caused serious damage to Harrods' reputation worldwide" by "linking Harrods (a law abiding and historic British institution) with Enron" and thereby insinuating that Harrods "can and will act unlawfully."*fn6 The letter demanded that the Journal publish a correction and an apology in its domestic and international editions and pay Harrods "substantial damages."*fn7 It also explained that Harrods' April Fools Day jest followed a long-standing tradition practiced in Britain by other prominent businesses that issued similar humorous press releases.*fn8

Attorneys for the two sides then exchanged numerous letters and communications articulating the parties' respective positions. On April 15, 2002, Dow Jones responded to Harrods' letter, denying that the April 5 Article was defamatory and asserting Dow Jones" view that the item was intended as humorous commentary, that the mention of Enron merely reflected "tongue-in-cheek hyperbole," and that because there was nothing inaccurate in the report there was nothing that needed correction.*fn9 Dow Jones suggested that Harrods submit a letter to the Journal's editor for publication.*fn10

Harrods replied on Aril 18, 2002. It rejected Dow Jones' contention that the April 5 Article was meant to be humorous as "simply an incredible, if not bizarre, assertion," and reiterated Harrods' demand for a published apology, warning of Harrods' intent to commence a defamation suit in the United Kingdom if Dow Jones failed to satisfy Harrods' demands.*fn11 Dow Jones replied on April 19, 2002. It asserted that the April 5 Article contained only non-actionable opinion grounded on disclosed that which could not serve as grounds for a defamation action, and repeated Dow Jones' willingness to publish a letter to the editor if Harrods submitted one.*fn12

Dow Jones next heard from Harrods' London solicitors on May 13, 2002. The correspondence informed Dow Jones that in preparation for filing a defamation suit in the United Kingdom, Harrods requested Dow Jones to provide certain "pre-action disclosure" concerning the circulation of the Journal's United States edition in the United Kingdom, the number of subscribers to its online edition in the United Kingdom and worldwide and the number of "hits" received on WSJ.com since April 5, 2002. The letter fixed a date of May 27, 2002 for disclosure of the requested information, after which Harrods would bring the matter to the appropriate court in London.*fn13

Dow Jones construed the demand from Harrods' solicitors for pre-action disclosures as a threat and prelude to litigation.*fn14 Dow Jones did not respond to Harrods' request for disclosure. Instead, it commenced the instant action against Harrods and Al Fayed in this Court on May 24, 2002. With regard to Al Fayed, Dow Jones asserts that although no threat of litigation had yet derived from Al Fayed himself, Dow Jones believes it faces a genuine threat because, as Chairman and owner of Harrods, "Al Fayed might well assert a claim for defamation against Dow Jones based on the April 5 Article."*fn15

Harrods proceeded to institute litigation in the High Court of Justice in London (the "London Action") on May 29, 2002 seeking damages for libel arising out of the Journal's publication of the April 5 Article.*fn16 Harrods later filed further particulars in the London Action specifying that it also sought an injunction against continued publication of the April 5 Article.*fn17 Al Fayed is not a party to the London Action.

B. THE ARGUMENTS

Dow Jones argues that an action for defamation based on the April 5 Article would be summarily dismissed under federal and state constitutional law of any American jurisdiction because the publication comprises only the author's non-actionable expression of opinion based on true statements and contains no facts capable of being proved false. By contrast, according to Dow Jones, the London Action may proceed against it under various long-standing principles of British law that are plainly antithetical to historic rules, traditions and policies established to protect free speech and freedom of the press in the United States.*fn18 Under these circumstances, Dow Jones maintains that, absent intervention by this Court, in defending the London Action Dow Jones would be compelled to incur enormous expenses and divert its editors and writers from their journalistic endeavors, and to operate with the uncertainty as to whether it may continue to publish the April 5 Article or face potential liability on account of it.

Accordingly, Dow Jones asks this Court to exercise its jurisdiction under the DJA to adjudicate the dispute. The judgment Dow Jones seeks would declare that any libel claim based on the April 5 Article would be insufficient as a matter of law on the grounds that the story contains no provably false statements of fact and represents only protected expressions of opinion, and that Harrods could not prove that Dow Jones acted with actual malice or gross irresponsibility in publishing it. Moreover, by reason of the running costs it would continue to incur, and the perceived threat of restrictions on its continued publication of the April 5 Article, Dow Jones requests an injunction barring Harrods and Al Fayed from pursuing the London Action or related litigation against Dow Jones in any other forum in the world.

Harrods counters that the Court lacks subject matter jurisdiction over Dow Jones' action because: (1) declaratory judgment relief is not the proper mechanism to resolve tort claims such as the defamation action underlying the parties' dispute; (2) Dow Jones' action represents a forum-shopping pre-emptive first strike brought in anticipation of a suit by Harrods — the natural plaintiff in this matter — which reflects a purpose not contemplated by the declaratory judgment statute; and (3) granting declaratory judgment to prevent Harrods from enforcing any recovery it may obtain in the London Action and to bar Al Fayed from instituting future litigation based on the April 5 Article would be improper because, on the basis of these contingent events alone, no "actual controversy" within the meaning of the DJA exists here.

II. STANDARD OF REVIEW

The matter now before the Court relates to Harrods' challenge to the Court's subject matter and personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) respectively. Ordinarily, when presented with such a double-barreled jurisdictional attack, the Court should determine the subject matter challenge first.*fn19 Although this rule does not reflect an "unyielding jurisdictional hierarchy,"*fn20 and reasons of judicial economy may suggest a different sequence in particular circumstances, the Court finds that in the instant case efficiency is better served by adhering to the customary practice. Accordingly, the Court will address the subject matter issue first.

Rule 12(b)(1) challenges to subject matter jurisdiction are generally regarded as following two forms. The motion may attack either the facial sufficiency of the pleadings in the complaint or the existence of subject matter jurisdiction in fact, irrespective of the substantive causes of action asserted in the pleadings.*fn21 In a facial challenge, the court accepts as true the uncontroverted factual allegations in the complaint.*fn22 By contrast, in connection with a factual challenge the court's review is not confined to the pleadings, but may examine extraneous evidence submitted with the motion and make any findings of fact necessary to determine the existence of subject matter jurisdiction.*fn23 In that event, the court is not obligated to accord presumptive truthfulness to the allegations of the complaint. Rather, it may weigh the evidence on the record accompanying the Rule 12(b)(1) motion, or hold an evidentiary hearing, and decide for itself the merits of the jurisdictional dispute.*fn24 Finally, "[t]he burden of proving jurisdiction is on the party asserting it."*fn25

Here, the underlying dispute does not entail Dow Jones' affirmative statement of a substantive cause of action. The Court construes Harrods' challenge to constitute an attack on the factual existence of subject matter jurisdiction under the DJA rather than a facial challenge to the sufficiency of the pleadings. Accordingly, the Court will consider the various affidavits and other documents submitted by both sides as these relate to the jurisdictional dispute and make factual findings as necessary to determine whether subject matter jurisdiction does exist.

III. DISCUSSION

This case encompasses the bounds, contours, purposes and interstices of the DJA.*fn26 That statute is an enabling law which confers discretionary jurisdiction upon federal courts rather than an absolute right upon the litigant invoking the remedy.*fn27 Specifically, the statute provides that in a case of an "actual controversy" within its jurisdiction, "[a] federal court may declare the rights and other legal relations of any interested party seeking such declaration. . . ."*fn28

The DJA remedy was designed as a means to facilitate early and effective adjudication of disputes at a time when a controversy, though actual, may still be incipient, but before it expands into larger conflict. The action generally commences at the instance of a party facing potential liability to another who may have an accrued claim at that time but has not yet commenced coercive litigation to pursue relief. By enabling the parties to narrow the issues and differences and expedite resolution of their conflict, the DJA procedure helps to minimize the prolongation of disputes, reduce the risk of loss and avoid the unnecessary accumulation of damages.*fn29

Declaratory relief thus not only functions as an adjudicatory device but serves a preventive purpose as well. It permits the court in one action to define the legal relationships and adjust the attendant rights and obligations at issue between the parties so as to avoid the dispute escalating into additional wrongful conduct. In this manner, the statute can avert greater damages and multiple actions and collateral issues involving not only the original litigants but potentially other third parties. So employed, the remedy promotes several utilitarian values in the adjudication of disputes: speed, economy and effectiveness. The Second Circuit, in Beacon Const. Co., Inc. v. Matco Elec. Co., Inc.,*fn30 has recognized these efficiencies as the primary purposes of the DJA. There, the Circuit Court noted that the statute was intended to "`afford a speedy and inexpensive method of adjudicating legal disputes without invoking the coercive remedies of the old procedure, and to settle legal rights and remove uncertainty and insecurity from legal relationships without awaiting a violation of the rights or a disturbance of the relationships'.")*fn31

The motion before the Court raises three basic issues that arise from the plain language and stated purposes of the statute, and from a number of guiding principles that govern the applicability of the remedy: whether the action as described in the pleadings (1) raises an "actual controversy

(2) falls within the scope of cases for which the DJA was intended, and (3) presents circumstances sufficiently compelling to warrant exercise of the Court's discretion to grant or deny the relief requested. These issues are considered in turn.

A. ACTUAL CONTROVERSY

1. Meaning and Scope of Actual Controversy

As a threshold issue, DJA actions are justiciable only in cases in which an "actual controversy" exists.*fn32 The relevant inquiry for this prerequisite is coextensive with the analysis applicable to the "case or controversy" standard embodied in Article III of the United States Constitution.*fn33 To this end, the Supreme Court has reinforced that the DJA does not alter the essential predicates for the exercise of federal jurisdiction embodied in the prescription that "`[t]he judicial power does not extend to abstract questions' and that `[c]laims based merely upon "assumed potential invasions' of rights are not enough to warrant judicial intervention.'"*fn34 This requirement circumscribes federal jurisdiction to real conflicts so as to preclude the courts from gratuitously rendering advisory opinions with regard to events in dispute that have not matured to a point sufficiently concrete to demand immediate adjudication and thus that may never materialize as actual controversies. Recognizing the practical difficulties associated with fashioning a precise test to distinguish in every case between an abstract, hypothetical or academic question and a real and substantial controversy, the Supreme Court has acknowledged that the difference is necessarily a matter of degree. In Maryland Casualty Co. v. Pacific Coal & Oil Co.,*fn35 the Court offered as guidance that

[b]asically, the question in each case is whether the facts alleged, under the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

The Supreme Court has stressed not only that the controversy must be sufficiently real and immediate, allowing specific and conclusive relief, but that it must also be ripe for adjudication. In Wycoff, the Court instructed that "[t]he disagreement must not be nebulous or contingent but must have taken a fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on its adversaries, and some useful purpose to be achieved in deciding them."*fn36 In a similar vein, the Second Circuit, in Muller v. Olin Mathieson Chem. Corp.,*fn37 reaffirmed that the measure of an actual controversy is necessarily relative and demands corresponding flexibility; it instructed that "[t]he difference between definite, concrete and substantial controversies which are justiciable, and hypothetical, abstract, or academic ones which are not justiciable, is one of degree, to be determined on a case by case basis."*fn38 Accordingly, a touchstone to guide the probe for sufficient immediacy and reality is whether the declaratory relief sought relates to a dispute where the alleged liability has already accrued or the threatened risk occurred, or rather whether the feared legal consequence remains a mere possibility, or even probability of some contingency that may or may not come to pass.*fn39

The "actual controversy" standard is conceptually linked to the doctrine of ripeness, requiring that the claim of threatened injury be of direct and immediate impact and the injury sufficiently likely to occur, so as to render the issue appropriate for judicial review.*fn40 In Laird v. Tatum,*fn41 the Supreme Court elaborated on this prerequisite. Reversing a determination that a sufficient controversy existed in an action for declaratory relief, the Court noted that allegations of a "subjective chill" on the exercise of First Amendment rights "are not an adequate substitute for a claim of specific present objective harm or threat of a specific future harm."*fn42

2. The Actual Controversy Standard Applied

In the light of this overview of relevant principles, the Court is not persuaded that under the circumstances presented here Dow Jones has met its burden to sufficiently demonstrate the existence of an actual controversy.

Dow Jones contends the April 5 Article is non-actionable under American First Amendment jurisprudence, and hence that any judgment obtained in the London Action pursuant to foreign libel law principles repugnant to United States constitutional doctrine and public policy would be unenforceable in American courts.*fn43 Thus, under Dow Jones' theory, an actual controversy exists by reason of the mere potential that Dow Jones may be exposed to liability in the London Action and that its being compelled to defend a lawsuit that would be found meritless in any court in the United States violates Dow Jones' First Amendment rights. On this basis, Dow Jones asks the Court to declare unenforceable, not only in the United States and the United Kingdom but anywhere else in the world, any libel judgment Harrods may obtain against Dow Jones in the London Action grounded on the April 5 Article. The Court cannot accept Dow Jones' proposition.

Even if Dow Jones' theory that a judgment against it in the London Action would be unenforceable in most or all American jurisdictions were conceded, it does not follow that the mere prospect that such a ruling may be rendered at some indefinite point in the future raises a sufficient actual controversy within the meaning of the DJA. The Court does not find enough immediacy and reality in Dow Jones' claim at this early stage of the London Action to warrant declaratory relief. In essence, Dow Jones' complaint is grounded on a string of apprehensions and conjectures about future possibilities: that the court in the London Action will find a basis to assert jurisdiction and will recognize the pleading of a sufficient claim; that an adverse ruling on the merits may be rendered against Dow Jones; that the adjudication may award Harrods compensatory damages or enjoin Dow Jones from publishing the April 5 Article; that Dow Jones may seek to enforce such judgment in the United States or elsewhere; that if enforcement is sought, the judgment will be recognized somewhere. At this juncture, however, these protestations and prospects amount to nothing more than what they still are: premature concerns about contingencies that may or may not come to pass.*fn44

In fact, Dow Jones cannot assert with any degree of concreteness or certainty at this point that Harrods' claim in the London Action necessarily would prevail on jurisdictional defenses*fn45 or on the merits under applicable British libel law principles. It cannot identify which particular aspects of the April 5 Article the British court may find defamatory nor which method and timeframe of publication would be held actionable. What specific relief would be granted, whether monetary or injunctive, and whether a ruling against Dow Jones would be sustained on final appeal, are all speculative questions. Whether or not Harrods would attempt to enforce a favorable judgment in the United States or elsewhere is also uncertain.

Dow Jones' own express confidence that any judgment rendered against it in the London Action would be summarily dismissed in any United States court works against its strenuous assertions that it faces a real, sufficiently direct and immediate threat of injury. In this regard, given the current posture of the London Action, the Court finds that Dow Jones' claim of impending harm, and its fears of enforcement of an adverse judgment, are too abstract, remote and hypothetical to constitute an actual controversy qualifying for the declaratory relief it seeks.

3. First Amendment Considerations

Dow Jones nonetheless contends that it is entitled to declaratory relief by virtue of the mere act of its having to defend what it considers a frivolous lawsuit in a foreign tribunal. It argues that this burden presents sufficient present harm and chilling effect on its First Amendment rights to constitute a justiciable controversy, and that this constitutional dimension elevates the stakes and should lower the threshold for finding an actual controversy, distinguishing this action from cases involving ordinary commercial disputes. In support of its proposition Dow Jones cites cases in which the Supreme Court has found it appropriate for federal courts to grant declaratory or injunctive relief barring parallel state court proceedings in which fundamental federal constitutional rights are threatened or not adequately protected.*fn46

It is true that under some circumstances it is easier to satisfy the threshold of a justiciable controversy when the claim implicates First Amendment rights.*fn47 However, the precedents Dow Jones' argument relies upon, as the Supreme Court subsequently made clear, do not constitute the rule, but a rigidly narrow exception to settled doctrines. In Younger v. Harris,*fn48 the Court noted:

"[w]e hold that the Dombrowski decision should not be regarded as having upset the settled doctrines that have always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute `on its face' abridges First Amendment rights.

The Younger Court recognized that not every chilling effect on freedom of expression presents a justiciable controversy warranting extraordinary equitable relief.*fn49 It found that no genuine controversy was presented with respect to parties who did not yet face prosecution under a statute alleged to infringe protected speech but who merely claimed that they "feel inhibited" in the exercise of First Amendment rights by reason of a state law.*fn50 Responding to this concern, the court observed: "[p]ersons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in such cases."*fn51

With respect to the defendant in Younger who actually was prosecuted, the Supreme Court found that the prospect of defending a criminal proceeding under a statute regulating speech did not amount to sufficient basis, in and of itself, to support federal injunctive relief barring the state proceeding. The "chilling effect" on freedom of expression associated with such prosecution, the Court noted, "should not by itself justify federal intervention."*fn52 Moreover, also germane to the issues Dow Jones' claim raises here, the Younger Court stated that:" Certain types of injury, in particular, the cost, anxiety and inconvenience of having to defend a single criminal prosecution, could not by themselves be considered `irreparable' in the special legal sense of that term."*fn53 And, as noted above, the Supreme Court also held in Laird that allegations of a "subjective chill" on the exercise of First Amendment freedoms are insufficient to create an actual controversy absent a concrete claim of specific present "objective" harm or threat future harm.*fn54 Under these standards, this Court concludes that Dow Jones' allegations of present or future harm are neither sufficiently concrete, objective or specific to support a finding of an actual controversy justifying the extraordinary relief Dow Jones seeks.

4. Intercourt Conflict and Comity

The precedents Dow Jones cites in support of its argument are inapposite in other respects. Those cases allowed federal injunctions of state court proceedings under extraordinary circumstances. But they did so in the context of domestic federal-state principles under which the issuance of relief by a federal court could afford an effective, enforceable remedy. Under the Supremacy Clause and principles of federalism embedded in our constitutional structure, the federal and state systems of government, though separate, are also interconnected and interdependent in vital ways. As the Supreme Court noted in Wycoff: "State courts are bound equally with the federal courts by the Federal Constitution and laws."*fn55 Thus, final federal judgments must be given full faith and credit and conclusive effect in state courts.

The circumstances are quite distinct as regards the foreign proceeding at issue here. Dow Jones insists that a real controversy exists because the relief it seeks would declare preemptively that Harrods' cause of action in the United Kingdom would be nullified not only in the United States but, under the American "single publication rule, "*fn56 "anywhere else in the world, including the U.K. itself."*fn57 On this basis, Dow Jones asks this Court, in aid of declaratory relief, to enjoin Harrods from pursuing its litigation in the London Action and every other possible forum. The Court cannot endorse such a far-reaching request. The constitutional strictures of the Full Faith and Credit Clause do not extend to international assertions of jurisdiction, especially those that the forum state may consider extravagant or exorbitant.*fn58

American law contains among the most extensive mantle of rights and safeguards to guarantee and protect individual freedoms and fundamental fairness. Gauged by the rigorous standards constituting the American conception of civil liberties and due process, the legal systems of many foreign states are bound to fall short as to any given basic precept our law encompasses. Accordingly, countless occasions inevitably arise when Americans are sued in foreign tribunals by parties invoking laws that in some aspect or other may not measure up to our constitutional mark or may even do violence to public policies and principles Americans hold dear — not only those valued under the First Amendment, but under other vital protections of our jurisprudence.

Dow Jones maintains that in the contemporary world, the Internet has made communications originating in the United States instantly available almost anywhere on Earth and, consequently, has rendered publishers vulnerable to the application of foreign laws regulating speech and to potential liability incompatible with American First Amendment principles. At the cusp of this momentous development, Dow Jones urges, United States courts in general, and this Court in particular, are thus uniquely poised to seize the opportunity to reinforce and enlarge the First Amendment protections American publishers enjoy so as to bar preemptively potential liability for any alleged defamation injury their commercial activities conducted in this country and transmitted through the worldwide web may cause in foreign jurisdictions. Validating this proposition would make it appropriate and commonplace for litigants to resort to federal courts under the DJA to obtain declarations of non-liability and injunctive relief whenever a party alleges that it faces even a mere prospect of a lawsuit or contingent liability in a foreign jurisdiction whose laws or procedures may conflict in some way with fundamental rights enjoyed under United States law.

Thus, under Dow Jones' hypothesis, the DJA would confer upon an American court a preemptive style of global jurisdiction branching worldwide and able to strike down offending litigation anywhere on Earth. Intriguing as such universal power might appear to any judge, this Court must take a more modest view of the limits of its jurisdiction, and offers a more humble response to the invitation and temptation to overreach. The Court finds nothing in the United States Constitution, nor in the DJA or in customary practice of international law, that comports with such a robust, Olympian perspective of federal judicial power.

Dow Jones itself implicitly acknowledges a first manifest flaw in its argument. It contends that the judgment it seeks from this Court would have a direct impact and immediately end the London Action "[i] f recognized by the British court," an eventuality Dow Jones suggests "likely would" happen.*fn59 Dow Jones cites no authority for its bold proposition, other than the conclusory assertion of its London counsel. The statement is not only speculative, but strenuously contested by Harrods' own solicitor, who questioned "on what basis it could possibly be said that an English court would recognize and apply a decision by an American Court as to whether a publication in England was actionable in accordance with English law,"*fn60 and expressed doubt "that the English court would be greatly influenced by the fact that the defendant had sought declaratory relief, presumably on the basis of the American law of defamation, in New York."*fn61 In light of such divergent expressions of legal opinion on foreign law by advocates for the two parties, neither thoroughly briefed, the Court is not in a position to accept as uncontroverted fact Dow Jones' hypothesis that the British tribunals would unquestioningly recognize a declaratory ruling of this Court as dispositive of the matters at issue in the London Action. The Court need not resolve definitively which version of English rules governing this point more closely reflects applicable law, although it better comports with this Court's notion of common sense and the practicalities of judicial administration to find Dow Jones' theory highly improbable.

Moreover, the large contingency reflected by that prominent "IF" would apply in every other corner of the globe where Harrods might alternatively choose to litigate the events at issue in the London Action or enforce an ensuing judgment. The argument presupposes an equally doubtful premise: that every other plausible sovereign jurisdiction in this world would similarly recognize the wisdom and commendable respect that the British tribunal would exhibit if it were to honor the higher authority of American law that this Court would have proclaimed dispositive and binding, and, in an equally pliant and agreeable display of deference, ylikewise would bow to this Court's presumed superior judgment.*fn62

The Court cannot share Dow Jones' ebullient faith in this prospect. Just as the Court's professed perception of its authority to grant the relief sought here is more restrained than the vision Dow Jones' theory tenders, the Court also harbors a skeptical view of the international recognition that would be accorded to a preemptive declaration by this Court to the effect that, because under American law a person could not be sued for a particular libel published in the United States, that party therefore could not be sued anywhere else in the world under the laws of any other country where the libel was actually published and plausibly may have caused harm. In this Court's reckoning, the realities and practicalities endemic to international relations do not allow for placing much stock in Dow Jones' sanguinity on this point. Any forecast of political or social consequences or even of legal expectations concerning issues on a global scale is bound to be subject to countless variables and imponderables whose vagaries render such oracles suspect and not sufficiently meaningful as grounds for hard judgments.

In fact, Dow Jones' hypothesis finds no support in international law principles or practice. As one leading commentator observed: "Courts of foreign countries, while likely to use comity language, will be reluctant to give effect to any injunctions purporting to restrain their own citizens and transactions."*fn63 Nor is Dow Jones' proposition likely to gain a sympathetic ear in the United Kingdom to compel a stay of the London Action in favor of the instant proceeding in this Court. Under British practice, where a plaintiff in England is the defendant in a foreign action involving the same parties and events, the courts are reluctant to stay the English proceedings.*fn64 "`The court ought not to stay a plaintiff in the courts of this country on the ground that he happens to be a defendant elsewhere.'"*fn65 Even were this Court to grant the relief Dow Jones seeks, its judgment may not be entitled to recognition or enforcement in the United Kingdom to the extent the British courts may find it contrary to English public policy,*fn66 or to constitute an effort to prevent the administration of justice for an unjust end.*fn67

5. Other Case Law

Other authorities Dow Jones cites for its expansive proposition are not on point. In Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme,*fn68 plaintiff Yahoo! sought a judgment declaring unenforceable in the United States a ruling that defendant, a French entity, had obtained from a tribunal in France. The French order directed Yahoo! not to post for sale through its online auction network accessible in France any items of Nazi memorabilia. The district court rejected defendant's argument. It held that there was no case or controversy because the French tribunal's order was still provisional and subject to appeal prior to any enforcement in the United States.*fn69 The Yahoo! facts are easily distinguishable from those at issue here.

First, the French proceeding was not an incipient lawsuit, or litigation still in its early stages, or merely a feared result that might arise from the prosecution of such a case. Rather, the declaratory action there challenged, after the fact, one consequence of an adjudication that had already been reduced to an actual official order issued by a government tribunal. Thus, the particular conduct which that judgment did or did not encompass, what the foreign tribunal ordered or did not order Yahoo! to do, as well as the specific penalties and timeframe for compliance it imposed, were all substantial, real and immediate. The effects of the French order were concrete and known to Yahoo!. In fact, Yahoo! had sought to comply with it, and the defendant had acknowledged Yahoo!'s substantial compliance, but had not taken steps to withdraw the action.

Second, the French order explicitly extended to an American national's activities in the United States. Compliance with the order required Yahoo! immediately to modify its business operations and the content of its expression in the United States. Third, the order specifically directed enforcement in the United States. Defendants twice used the United States Marshal's office to serve the French order on Yahoo! in California. And the French court prescribed that the penalties assessed against Yahoo! could not be collected from Yahoo!'s affiliate in France.

Finally, the federal declaratory relief Yahoo! sought was limited to a determination that the French order would not be cognizable under the laws of the United States nor enforceable in this country. There was no indication that Yahoo! sought the federal court to bar the French court from prosecuting the action in France or from enforcing its order within any French jurisdiction. Nor was there an implicit argument that because Yahoo's conduct was not actionable in the United States under American law, it could not be actionable at all either in France under French law, or anywhere else. In fact, the Yahoo! court underscored that these issues were not before it. Recognizing France's sovereign prerogatives to govern affairs within its borders, the Court stated: "A basic function of a sovereign state is to determine what forms of speech and conduct are acceptable within its borders."*fn70 Thus, the practical and enforceable remedy sought in Yahoo! ...


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