if jurisdiction exists under the "catch-all" provision, a defendant does
not have to perform any of the enumerated acts set forth in the remainder
of the statute. Mors v. Williams, 791 F. Supp. 739, 741 (N.D.Ill. 1992).
To determine whether personal jurisdiction over the Lupin defendants is
proper, the court must consider: (1) whether the Illinois long-arm
statute, 735 ILCS § 5/2-209, grants jurisdiction; and whether this
court's assertion of jurisdiction is consistent with (2) the Illinois,
and (3) United States Constitutions. RAR, Inc. v. Turner Diesel, Ltd.,
107 F.3d at 1276. As the Seventh Circuit recently explained, "[b]ecause
the Illinois statute authorizes personal jurisdiction to the
constitutional limits, the three inquiries mentioned above collapse into
two constitutional inquiries — one state and one federal". Id.;
YKK, USA, Inc. v. Baron, 976 F. Supp. 743, 745 (N.D.Ill. 1997).
a. The State Inquiry
With respect to the state inquiry, in Illinois, general jurisdiction
principles apply when the case neither arises from nor is related to the
defendant's contacts with the forum, and is permissible only if the
defendant has "continuous and systematic general business contacts" with
the forum. RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d at 1277, citing
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.
8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The court will not consider
general jurisdiction, as the plaintiffs expressly rely on specific
In contrast, specific jurisdiction applies when the court is asserting
jurisdiction over a defendant in a suit "arising out of or related to the
defendant's contacts with the forum." Id., citing Helicopteros Nacionales
de Colombia, S.A. v. Halt, 466 U.S. at 416, 104 S.Ct. 1868. The court may
exercise specific jurisdiction over the Lupin defendants if they
"purposefully established minimum contacts within the forum state" and
those contacts "make personal jurisdiction fair and reasonable under the
circumstances." RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d at 1277,
quoting Burger King v. Rudzewicz, 471 U.S. at 476-77, 105 S.Ct. 2174.
This case is based on an alleged conspiracy. Thus, for specific
jurisdiction purposes, what is commonly referred to as the conspiracy
theory of jurisdiction is applicable. Under this theory, a court may
assert jurisdiction over all of the co-conspirators, both resident and
non-resident, based on their involvement in a conspiracy which occurred
within the forum. See, e.g., Chromium Industries, Inc. v. Mirror
Polishing & Plating Company, 448 F. Supp. 544 (N.D.Ill. 1978). To satisfy
this standard, the plaintiffs must: (1) make a prima facie factual
showing of a conspiracy (i e., point to evidence showing the existence of
the conspiracy and the defendant's knowing participation in that
conspiracy); (2) allege specific facts warranting the inference that the
defendant was a member of the conspiracy; and (3) show that the
defendant's co-conspirator committed a tortious act pursuant to the
conspiracy in the forum. Id.; United States v. Sasson, 62 F.3d 874, 886
(7th Cir. 1995). The evidence relating to the conspiracy may be direct or
circumstantial. United States v. Hickok 77 F.3d 992, 1005 (7th Cir.
As the court has previously noted, if the plaintiff can satisfy the
three requirements necessary under the conspiracy theory of
jurisdiction, even a foreign defendant with no real contact with the
forum state and no direct business relations tied to the forum state
would be subject to the court's jurisdiction. It is important to note,
however, that due process requires, at a minimum, "a factual showing of a
conspiracy and a factual connection between the acts of the conspirator
who was present in the jurisdiction and the conspirator who was absent."
Chromium Industries, Inc. v. Mirror Polishing &
Plating Co., Inc., 448 F. Supp. at 553.*fn1 Simply alleging that a
corporate defendant participated in a conspiracy and that another member
of the conspiracy committed a tort in the forum state is not enough to
reach the defendant who is an absent co-conspirator. Id. at 552.
b. The Federal Inquiry
With respect to the federal inquiry, federal due process requires that
the exercise of personal jurisdiction over a nonresident defendant be
reasonable. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66
S.Ct. 154, 90 L.Ed. 95 (1945). Pertinent factors include: (1) the
interest of the state in providing a forum to the plaintiff; (2) the
interest of the state in regulating the activity involved; (3) the burden
of defense in the forum on the defendant; (4) the relative burden of
prosecution elsewhere on the plaintiff; (5) the extent to which the claim
is related to the defendant's local activities; and (6) avoidance of
multiplicity of suits on conflicting adjudications. Asahi Metal Indus.
Co. v. Superior Court of California, 480 U.S. at 115, 107 S.Ct. 1026;
Burger King Corp. v. Rudzewicz, 471 U.S. at 472-73, 105 S.Ct. 2174.
Federal due process also requires the nonresident defendant to have
"minimum contacts" with the forum state and to have "purposefully availed
itself" of the privilege of conducting activities within the forum
state. International Shoe Co., 326 U.S. at 310, 66 S.Ct. 154; Hanson v.
Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Dehmlow v.
Austin Fireworks, 963 F.2d at 945.
2. The Lupin Defendants' Contacts — The State Inquiry
In essence, the plaintiffs contend that the evidence shows that the
Lupin defendants conspired in Illinois and performed substantial acts in
Illinois in furtherance of that conspiracy. In contrast, the Lupin
defendants assert that Angus' prosecution of the Cook County lawsuit
cannot be attributed to them, and that other correspondence between Lupin
and Angus reflects legitimate business activities between the two
companies. The evidence regarding these arguments is under seal. Thus,
the court must undertake the difficult task of explaining why the facts
in this case do or do not support the exercise of personal jurisdiction
while only obliquely referring to those facts. See Pepsico, Inc. v.
Redmond, 46 F.3d 29, (7th Cir. 1995) (Easterbrook, J., in chambers)
"[t]he district judge should prepare an opinion suitable for general
circulation, rather than preparing an opinion on the assumption that the
whole document will remain secret and then releasing copies with
sentences and paragraphs blotted out, as if Glavlit (the Soviet Union's
censorship bureau) has got its hands on the document".
Have the plaintiffs made a prima facie factual showing of a conspiracy
(i.e., have they pointed to evidence showing the existence of the
conspiracy and the defendants' knowing participation in that
conspiracy), and have they alleged specific facts warranting the
inference that the defendant was a member of the conspiracy? The court
finds that the answer to these questions is "yes." The court also takes
this opportunity to reiterate that, in making this determination, it must
construe all facts relating to jurisdiction in favor of the plaintiffs,
including disputed or contested facts. See, e.g., Miller Pipeline Corp.
v. British Gas, plc, 901 F. Supp. at 1423.
First, it is true that "conduct as consistent with permissible
competition as with illegal conspiracy does not, standing alone, support
an inference of antitrust
conspiracy." Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), citing Monsanto
Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79
L.Ed.2d 775 (1984). Nevertheless, it is also true that, even if conduct
could potentially be consistent with permissible competition, a plaintiff
may still make a prima facie showing of a conspiracy if it establishes
that the "inference of conspiracy is reasonable in light of the competing
inferences of independent action or collusive action that could not have
harmed [the defendants]." Id. The court finds that the evidence presented
by the plaintiffs, including the letters previously presented by the
plaintiffs (i.e., the July 23, 1991 telex from Hughes to Granzow and the
August 22, 1991 telex from Hughes to Gupta), satisfy this standard. To
the extent that the court's prior opinions rely on only the first portion
of Matsushita quoted above, they are too narrowly drawn and are,
Second, the Seventh Circuit instructs us that, to show the existence of
a conspiracy indirectly, a plaintiff must demonstrate that a defendant is
acting in a way that is inconsistent with unilateral decision making.
Illinois Corporate Travel, Inc. v. American Airlines, 806 F.2d 722, 726
(7th Cir. 1986). In other words, the plaintiff must show that "the
defendant acted in a way that, but for a hypothesis of joint action,
would not be in its own interest." Id. The court finds that the
plaintiffs have pointed to documentation memorializing the relationship
between Angus and Lupin that supports the inference that, but for an
agreement, the Lupin defendants would not have acted as they did.
Legitimate business dealings do not include discussions regarding the
need to keep competitors from entering the market and the means by which
this goal may be attained.
Third, the court rejects the Lupin defendants' characterization of
their relationship with Angus. The letters previously considered by the
court as well as the additional correspondence tendered by the plaintiffs
support an inference that the Lupin defendants and Angus were conspiring
to prevent other entities from entering the AB market. Undoubtedly,
evidence of lawful relationships between alleged co-conspirators is
insufficient to support an inference of conspiracy. See, e.g., Monsanto
Co. v. Spray-Rite Service Corp., 465 U.S. at 762, 104 S.Ct. 1464. The
evidence in this case, however, supports an inference that the
defendants' relationship was based on more than arms-length business
Fourth, the fact that the evidence does not show that the Lupin
defendants knew about the Cook County lawsuit before it was filed does
not doom the plaintiffs' case against them. The Seventh Circuit does not
require all co-conspirators to agree on every detail to be taken in
furtherance of their common goals. Instead, "[t]o be liable as a
coconspirator you must be a voluntary participant in a common venture . . .
you need not have agreed on the details of the conspiratorial scheme
or even know who the other conspirators are. It is enough if you
understand the general objectives of the scheme, accept them, and agree,
either explicitly or implicitly, to do your part to further them." Jones
v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). The common goal in
this case — to limit competition in the AB market — is
apparent from the record. The evidence supports an inference that Angus
and Lupin understood the objectives and agreed to further them. Even if
they may have also engaged in other legal activities together, the
activities in support of the common goal are sufficient to support an
inference that the Lupin defendants were part of the alleged conspiracy.
This brings the court to the final element necessary to satisfy the
conspiracy theory of jurisdiction: whether Angus committed a tortious act
pursuant to the conspiracy in the forum. Based on the arguments and
evidence previously submitted by the parties, the court directed
the plaintiffs to allege facts sufficient for the court to find a link
between the alleged actions of the Lupin defendants and the lawsuit filed
in Cook County allegedly in furtherance of the conspiracy. Despite the
Lupin defendants' focus on the Cook County lawsuit in its briefs, the
plaintiffs' current arguments in support of the existence of a tortious
act in the forum are based on more than the existence of that lawsuit.
Specifically, the plaintiffs direct the court's attention to evidence
supporting their claim that Gupta and Lupin officials met in Illinois and
that the Lupin defendants sent letters into Illinois for the purpose of
furthering the alleged conspiracy. The court finds that, regardless of
the dispute regarding the Lupin defendants' involvement in the Cook
County lawsuit or the presence of subsequent explanations for that suit
(which arc not necessarily inconsistent with the existence of a
conspiracy), the plaintiffs have adequately shown, based on these
additional contacts, that the exercise of personal jurisdiction under
state law is proper. This is because those additional contacts show that
the Lupin defendants purposefully took actions in Illinois which make the
exercise of personal jurisdiction fair and reasonable. See BAR, Inc. v.
Turner Diesel, Ltd., 107 F.3d at 1277.
3. The Lupin Defendants' Contacts — The Federal Inquiry
Because the court agrees with the plaintiffs that the evidence supports
an inference that the Lupin defendants conspired in Illinois and
performed substantial acts in Illinois in furtherance of that conspiracy,
the court must turn to whether the exercise of personal jurisdiction over
the Lupin defendants is reasonable under federal law. As noted above,
federal due process requires that: (1) the exercise of personal
jurisdiction over a nonresident defendant be reasonable; and (2) the
defendant have "minimum contacts" with the forum state and purposefully
avail itself of the privilege of conducting activities within the forum
state. See, e.g., International Shoe Co. v. Washington, 326 U.S. at 316,
66 S.Ct. 154.
The court first examines the well-known factors first set forth in
Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. at 115,
107 S.Ct. 1026, and Burger King Corp. v. Rudzewicz, 471 U.S. at 472-73,
105 S.Ct. 2174, which are summarized above. First, Illinois
unquestionably has an interest in providing a forum to plaintiffs who
were allegedly injured by anticompetitive activities in Illinois.
Second, the burden of defending a suit in Illinois on the defendant and
the relative burden of prosecution elsewhere on the plaintiffs cancel
each other out. While the Lupin defendants clearly do not wish to be
involved in litigation in this forum, they chose to do business here and
cannot be heard to complain that litigation arising out of those contacts
is inconvenient. See Lisak v. Mercantile Bancorp, 834 F.2d 668, 671 (7th
Cir. 1987) (a defendant may not "demand that the court applying the law
of the United States be conveniently located"). Third, the plaintiffs'
claims are based solely on the Lupin defendants' local activities.
Next, the court considers whether the Lupin defendants' contacts
satisfy due process. See, e.g., International Shoe Co., 326 U.S. at 310,
66 S.Ct. 154. This requirement is satisfied when the defendant has
purposefully directed its activities to the forum state or personally
derived economic benefits from the activities with the forum state. Id.
It is not satisfied where only single or occasional acts are related to
the forum, but their nature, quality, and the circumstances of their
commission create only an attenuated connection to the forum. Id. at
318, 66 S.Ct. 154. For the reasons noted above, the court finds that the
contacts satisfy due process.
Finally, the court considers whether the exercise of jurisdiction in
Illinois over the Lupin defendants would violate traditional notions of
fair play and substantial justice.
See e.g., Logan Productions, Inc. v. Optibase, Inc., 103 F.3d at 53.
Because the court has found that the allegations in the complaint and
the evidence proffered the plaintiffs support an inference that the
Lupin defendants participated in a conspiracy in Illinois, the exercise
of jurisdiction would not violate traditional notions of fair play and
substantial justice. For these reasons, the court finds that the exercise
of personal jurisdiction over the Lupin defendants is proper. Accordingly,
the Lupin defendants' motion to dismiss is denied.
The Lupin defendants' motion to dismiss the plaintiffs' second amended
complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P.
12(b)(2) [342-1] is denied.