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Trading Technologies v. Bcg Partners

March 28, 2011


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Trading Technologies, International, Inc. ("TT") filed this case alleging defendants BGC Partners, Inc. ("BGCP"), Cantor Fitzgerald, L.P. ("Cantor") BGC Holdings, L.P. ("BGCH"), and BGC Partners, L.P. ("BGC U.S.") (together, the "BGC Defendants") infringed on certain patents held by TT relating to computer-based tools for trading on exchanges, including the eSpeed software. The BGC Defendants have moved to dismiss for lack of personal jurisdiction and for improper venue (Doc. 46), asserting they are holding companies with insufficient contacts with Illinois, not the operating subsidiaries selling the software allegedly infringing on TT's patents. TT asserts personal jurisdiction is proper in Illinois and if it has not met its prima facie burden, that it should be granted leave to take jurisdictional discovery. (See Doc. 53.) For the reasons set forth below, the Court denies the BGC Defendants' motion without prejudice and grants TT's motion for leave to take limited jurisdictional discovery and file an amended complaint in accordance with this opinion.

I. Jurisdictional Facts

A. Jurisdictional Allegations in TT's Complaint

In its complaint, TT alleges that Cantor controls BGCP, that BGCP controls and manages BGCH, and that BGCH controls and manages BCG U.S. (Doc. 34, Second Amend. Compl. ¶¶ 2-11.) As a result, BGC controls and manages BGC U.S. through its control of BGCH, and Cantor controls and manages BGC U.S. through its control of BGC. (Id. at ¶¶ 12-13.)

B. Lampert Declaration

In support of its motion to dismiss, the BGC Defendants submitted the declaration of Michael Lampert, who holds various in house legal positions with all four BGC Defendants. (Lampert Dec. ¶ 1.) Lampert states that BGCP, BGCH and BGC U.S. are all holding companies that exist to own other companies, not to produce anything or provide any service. (Id. ¶ 3.) BGCP, BGCH and BGC U.S. were created in order to effectuate a merger between eSpeed, Inc. ("eSpeed"), a publicly traded corporation, and an LLC owned by Cantor. (Id.)The multiple holding companies were required to "recogniz[e] the equity and voting interests of the various classes of stockowners and partners of [eSpeed and the LLC]." (Id. ¶ 11.)After the merger, Cantor owns a majority stake in BGCP, which in turn owns a controlling interest in BGCH and a limited interest in BGC U.S. (Id. ¶ 10 Chart.) Cantor also owns a limited partnership stake in BGCH. (Id.) BGCH owns the controlling interest in BGC U.S. (Id.)BGC U.S. is a holding company created to hold all of BCGP's domestic operating subsidiaries under a single umbrella. (Id. ¶ 14.) BGCH is an intermediate holding company that exists to preserve certain partnership interests and allocate a portion of profits and losses of the operating businesses to Cantor. (Id. ¶ 13.) Cantor does not operate any of the electronic trading businesses relevant to TT's complaint. (Id. ¶ 15.) Each of the BGC Defendants is organized under Delaware law, has its principal place of business in New York, and is not qualified to do business as a foreign corporation in Illinois. (Id. ¶¶ 16-17.) Further, none of the BGC Defendants "has a regional office in this district, regularly conducts business in this district, provides trading software for use with exchanges in this district, or has committed any acts in this district, of infringement or otherwise." (Id. ¶ 18.) Rather, "all operating business are held in companies further down the organizational chart" from the BGC Defendants. (Id. ¶ 11.)

C. TT's Evidence of Personal Jurisdiction

In response to the BGC Defendants' motion to dismiss, TT submitted the following evidence.*fn1 First, TT points to various securities filings by BGCP. These securities filings describe BGCP "together with its subsidiaries." (See e.g., Doc. 52-2 at 9*fn2 .) BGCP's securities filings refer to BGC U.S. as an "operating subsidiar[y]" or as an "operating partnership[]." (See Doc. 47-1 at 74, Doc. 34-2 at 29.) In BGCP's 2009 10-K, BGCP states that the corporate structure "entitle[s] [BGCH] (and thereby [BGCP]) to control . . . BGC U.S.," and that "[u]nder the [BGCH] limited partnership agreement we [BGCP], as the [BGCH] general partner, manage the business and affairs of [BGCH]." (Doc. 52-2 at 33.) The same 10-K states that "Cantor*fn3 will continue to exercise control over our management and affairs and all matters requiring stockholder approval . . . ." (Id. at 228.) The BCG U.S. partnership agreement states that "the management and control of this business and affairs of [BCG U.S.] shall be vested solely in, and directed and exercised solely by, the General Partner [BGCH]." (Doc. 32-7, at 15.)

BGCP's securities filings and the website ("the BGC website"), show office space occupied by BGCP or one of its subsidiaries in Chicago. (See Doc. 52-2 at 9, 271.) The BGC website further states that the office space in Chicago was a former eSpeed sales office. (Id. at 271.) An affidavit submitted by TT states that BGCP is listed as the tenant in the office space in Chicago and that a reverse-telephone directory indicates that BGCP is the owner of the telephone number listed for that Chicago office space. (Id. at 275-76.) The BGC website also lists a Chicago employee as a sales contact for eSpeed services and software, which is at issue in this case, and that "BCG's Ecco software business is also based in Chicago." (Id. at 288.) The website associated with Cantor, ("the Cantor website"), lists Chicago office space in the same location as the BGC website. (Id. at 291.) TT also points out a job listing on the Cantor website for a job in the "Chicago Office" selling "eSpeed" software. (Id. at 296.)

II. Personal Jurisdiction Tests and Standard of Review

To determine whether the Court has personal jurisdiction over a nonresident defendant in a patent case, it applies the law of the federal circuit rather than that of the regional circuit in which it arises. See Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed. Cir. 2001); MacLean-Fogg Co. v. Edge Composites, LLC, No. 08 C 6367, 2009 WL 1010426, at *4 (N.D. Ill April 14, 2009). The Court may exercise personal jurisdiction over a defendant in a patent infringement case if two requirements are met: (1) jurisdiction must exist under Illinois' long-arm statute and (2) jurisdiction must be consistent with the limitation of the due process clause. See Trintec Indus. v. Pedre Promotional Prods. Inc., 395 F.3d 1275, 1279 (Fed. Cir. 2005). The Illinois long-arm statute is coextensive with federal due process requirements and therefore the two-step inquiry collapses into one: whether the exercise of personal jurisdiction over the defendants comports with constitutional due process. See 735 ILCS 5/2-209(c); see also Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358 (Fed. Cir. 1998).

Personal jurisdiction is proper under constitutional due process only when the defendant has "minimum contacts" with the forum "such that maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). Under the "minimum contacts" test, a defendant may be subject to either general or specific jurisdiction. See LSI Indus. Inc., v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375 (Fed. Cir. 2000). For general jurisdiction, a defendant must have "continuous and systematic" contacts with the forum. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984); Autogenomics, Inc. v. Oxford Gene Tech., Ltd., 566 F.3d 1012, 1017 (Fed. Cir. 2009). For specific jurisdiction, the Federal Circuit has established a three-prong test that must be satisfied: (1) whether the defendant purposely directed its activities at the residents of the forum; (2) whether the claim arises out of or is related to those activities; and (3) whether assertion of personal jurisdiction is reasonable and fair. See Holly Anne Corp. v. TFT, Inc., 199 F.3d 1304, 1307-08 (Fed. Cir. 1999).

"Where the district court's disposition as to the personal disposition as to the personal jurisdiction question is based on affidavits and other written materials in the absence of an evidentiary hearing, a plaintiff need only to make a prima facie showing that defendants are subject to personal jurisdiction." See Elecs. For Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed. Cir. 2003). "In the procedural posture of a motion to dismiss a district court must accept the uncontroverted ...

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