586 F.3d 689 (9th Cir. 2009), 08-35561, Vivendi SA v. T-Mobile USA, Inc.

Docket Nº:08-35561.
Citation:586 F.3d 689
Opinion Judge:BEA, Circuit Judge:
Party Name:VIVENDI SA; Vivendi Holding I Corp., Plaintiffs-Appellants, v. T-MOBILE USA INC.; T-Mobile Deutschland GmbH T-Mobile International AG; Deutsche Telekom AG; Zygmunt Solorz-Zak, Defendants-Appellees.
Attorney:Lanny J. Davis, Garret G. Rasmussen, Adam W. Goldberg, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., for the appellants. Samuel A. Keesal, Jr., Ben Suter, Robert J. Bocko, Keesal, Young & Logan, San Francisco, CA, for the appellees.
Judge Panel:Before: HARRY PREGERSON, JOHN T. NOONAN, and CARLOS T. BEA, Circuit Judges.
Case Date:November 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 689

586 F.3d 689 (9th Cir. 2009)

VIVENDI SA; Vivendi Holding I Corp., Plaintiffs-Appellants,

v.

T-MOBILE USA INC.; T-Mobile Deutschland GmbH T-Mobile International AG; Deutsche Telekom AG; Zygmunt Solorz-Zak, Defendants-Appellees.

No. 08-35561.

United States Court of Appeals, Ninth Circuit

November 2, 2009

Argued and Submitted Aug. 3, 2009.

Page 690

Lanny J. Davis, Garret G. Rasmussen, Adam W. Goldberg, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., for the appellants.

Samuel A. Keesal, Jr., Ben Suter, Robert J. Bocko, Keesal, Young & Logan, San Francisco, CA, for the appellees.

Appeal from the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding. D.C. No. 2:06-cv-01524-JLR.

Before: HARRY PREGERSON, JOHN T. NOONAN, and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge:

This appeal concerns a French corporation's allegations that a German corporation and a Polish billionaire colluded fraudulently in Europe to wrest control of a Polish wireless telephone company from the French corporation. The French corporation sought a remedy 1 for these alleged wrongs in-of all places-the United States District Court for the Western District of Washington. The district court dismissed the case on the ground of forum non conveniens. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

The Parties

Vivendi S.A. and Vivendi Holding I Corp.2 (Vivendi Holding) (collectively Vivendi)

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appeal the district court's order dismissing their complaint on forum non conveniens grounds. Vivendi S.A. is a French corporation. Vivendi Holding is a Delaware corporation.

Vivendi filed suit against Deutsche Telekom AG, T-Mobile International AG, T-Mobile Deutschland GmbH, T-Mobile USA, Inc. (collectively T-Mobile), and Zygmunt Solorz-Zak (Solorz) in the Western District of Washington, asserting a claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, and a claim for common-law fraud. Deutsche Telekom, T-Mobile Deutschland, and T-Mobile International are German corporations. T-Mobile USA is a Delaware corporation with its principal place of business in Bellevue, Washington. Solorz is a Polish citizen.

Factual and procedural background

The facts in this case, spanning ten years of European business transactions and litigation, could be difficult to follow. Therefore, we relate here only those facts essential to the disposition of this appeal.3

I. The battle for control of Polska Telefonia

In 1999, both T-Mobile Deutschland and Vivendi S.A. took an interest in the Polish wireless telephone company, Polska Telefonia Cyfrowa Sp. z o.o. (Polska Telefonia). At the time, Polish law precluded foreign investors from holding more than 49% of the shares of any Polish telecommunications company.4 The German company T-Mobile Deutschland, which at the time held a 22.5% interest in Polska Telefonia, acquired an additional 26.5% interest from other shareholders, for a total of 49%.

While T-Mobile Deutschland was buying up shares, so was Vivendi S.A., a French corporation. To facilitate its intended takeover of Polska Telefonia, Vivendi S.A. partnered with a Polish company, Elektrim S.A. Vivendi S.A. and Elektrim established a joint venture that operated through a holding company called Telco. Over time, Vivendi S.A. invested $2.5 billion to acquire a 51% interest in Telco. Pursuant to the joint venture agreement, Elektrim transferred its 37.1% interest in Polska Telefonia to Telco, along with an additional interest it acquired from other shareholders, for a total of 51% of the Polska Telefonia stock.

On December 7, 2000, T-Mobile Deutschland initiated arbitration against Elektrim in Vienna. T-Mobile Deutschland claimed that Elektrim's transfer of its shares to Telco materially breached Polska Telefonia's shareholder agreement.5 The shareholder agreement bound all Polska Telefonia shareholders and provided certain shareholders, including T-Mobile Deutschland, the option to buy the shares of any shareholder who materially breached the agreement.

In 2003, while the arbitration was pending, Solorz purchased a controlling interest in Elektrim, which at the time held a joint venturer's interest in Telco's Polska Telefonia shares. Vivendi alleges that Solorz

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secretly agreed to help T-Mobile Deutschland gain control of Polska Telefonia. To this end, Elektrim terminated its joint venture agreement with Vivendi S.A. Vivendi S.A. and Elektrim, however, retained their joint ownership of Telco.

On November 26, 2004, the Vienna arbitration panel held that Elektrim's transfer of its shares to Telco was ineffective because Elektrim transferred its shares to Telco without the consent of all of the members of Polska Telefonia's Board of Directors, as required by the Polska Telefonia shareholder agreement. The panel further held that, if Elektrim did not recover its shares from Telco within two months, Elektrim would be in material breach of the shareholder agreement, thus triggering T-Mobile Deutschland's options to buy Elektrim's shares. A Warsaw Regional Court granted Elektrim's petition for recognition of the arbitral award.

Relying on this recognition order, T-Mobile Deutschland and Elektrim took over the Polska Telefonia management board. Elektrim and T-Mobile Deutschland then secured an order from the Warsaw Regional Court changing the Polish government's official share register to show Elektrim alone, and not Vivendi S.A., as the owner of the Telco shares.

In February 2005, Everest, a Miami-based company, purchased Elektrim bonds. By this time, however, Vivendi alleged Solorz used his controlling interest in Elektrim to begin stripping Elektrim of its assets. Elektrim failed to make required payments on the bonds, and the trustee for the bonds filed a petition in Polish court to put Elektrim into bankruptcy to prevent Solorz from further reducing Elektrim's assets. The bankruptcy court issued an injunction barring any transfer of Elektrim's Polska Telefonia shares.6

By May 2005, Elektrim had failed to recover its Polska Telefonia shares from Telco, so T-Mobile Deutschland again initiated arbitration in Vienna. This time, T-Mobile Deutschland sought a declaration that it was entitled to exercise its option to buy Elektrim's shares. While the arbitration was pending, Deutsche Telekom approached Vivendi S.A...

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