885 F.2d 1406 (9th Cir. 1989), 88-2900, Go-Video, Inc. v. Akai Elec. Co., Ltd.

Docket Nº:88-2900.
Citation:885 F.2d 1406
Party Name:GO-VIDEO, INC., Plaintiff-Appellee, v. AKAI ELECTRIC COMPANY, LTD., et al., Defendants, and Matsushita Electric Industrial Company, Ltd., Defendants-Appellants.
Case Date:September 05, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1406

885 F.2d 1406 (9th Cir. 1989)

GO-VIDEO, INC., Plaintiff-Appellee,


AKAI ELECTRIC COMPANY, LTD., et al., Defendants,


Matsushita Electric Industrial Company, Ltd., Defendants-Appellants.

No. 88-2900.

United States Court of Appeals, Ninth Circuit

September 5, 1989

Argued and Submitted Nov. 2, 1988.

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Paul F. Eckstein, Brown & Bain, P.A., Phoenix, Ariz., A. Paul Victor, Weil, Gotshal & Manges, New York City, Philip C. Gerard, O'Connor, Cavanagh, Anderson, et al., Phoenix, Ariz., Anthony Liebig, Liebig & Kulzick, Los Angeles, Cal., Mark I. Harrison, Harrison, Harper, Christian & Dichter, P.C., Phoenix, Ariz., and Lance Gotthoffer, Marks, Murase and White, Phoenix, Ariz., for the defendants-appellants.

Daniel R. Shulman, Gray, Plant, Mooty, et al., Minneapolis, Minn., Joseph M. Alioto, Alioto & Alioto, San Francisco, Cal., and R. Terren Dunlap, Scottsdale, Ariz., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before SCHROEDER, REINHARDT and LEAVY, Circuit Judges.

REINHARDT, Circuit Judge:

This is an interlocutory appeal from an order of the District Court for the District of Arizona in which we must decide two related questions: first, whether an antitrust plaintiff who serves process pursuant to the provisions of Sec. 12 of the Clayton Act, 15 U.S.C. Sec. 22, may properly establish venue under the Alien Venue Act, 28 U.S.C. Sec. 1391(d); and second, whether it was error for the district court to exercise personal jurisdiction over alien defendants based on an assessment of their contacts with the United States as a whole, rather than their contacts with the forum district. The district court ruled that venue need not be established under the same statute which provides the basis for service of process, that venue lay properly in Arizona under the Alien Venue Act, and that the "national contacts" of the defendants were sufficient for the exercise of personal jurisdiction. We agree and affirm.


The plaintiff in the underlying action, Go-Video, Inc. ("Go-Video"), is a Delaware corporation with its principal place of business in Arizona. Since 1984, Go-Video has apparently been attempting to purchase parts from which it could assemble a "dual deck" video cassette recorder, the "VCR-2," for which it holds a United States patent. 1 In its complaint Go-Video alleges that a number of foreign manufacturers of consumer electronics, a Japanese electronics trade association (collectively known as the "manufacturing defendants"), various domestic motion picture companies, and a motion picture trade association (the "motion picture defendants") conspired to prevent the marketing of dual deck VCR's in the United States and, pursuant to this allegedly illicit agreement, refused to deal with Go-Video. These actions, Go-Video claims, violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1.

Go-Video served process on the manufacturing defendants through the long-arm provision of Section 12 of the Clayton Act, 15 U.S.C. Sec. 22, which provides:

Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also

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in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.

As each of the manufacturing defendants was an alien corporation, Go-Video filed suit in the United States District Court for the District of Arizona, alleging venue to be proper under the terms of the Alien Venue Act, codified at 28 U.S.C. Sec. 1391(d):

Venue generally

* * *

(d) An alien may be sued in any district.

The appellants here are the remaining manufacturing defendants, four Japanese and one Korean corporation. 2 After being served by Go-Video, some of the manufacturing defendants filed motions to dismiss Go-Video's complaint for lack of personal jurisdiction and improper venue, under Fed.R.Civ.P. 12(b)(2) and (3). All parties eventually filed a "Joint Application for Determination of 'National Contacts' Issue of Law," asking the district court to rule definitively on the personal jurisdiction question. The district court ruled in favor of Go-Video, determining venue to be proper in Arizona and the use of "national contacts" analysis consistent with the approach sanctioned by this court in Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309 (9th Cir.1985) ("Vigman "). The manufacturing defendants petitioned for certification of the questions raised in the Joint Application under the interlocutory appeal provision of 28 U.S.C. Sec. 1292(b). 3 The district court granted the certification request and we agreed to hear the interlocutory appeal. 28 U.S.C. 1292(b); Fed.R.App.P. 5. 4


We turn first to appellants' argument that section 12 of the Clayton Act must be read as an "integrated whole," requiring every antitrust plaintiff to satisfy the section's venue provision if it is to avail itself of its worldwide service of process authorization. 5 They base this argument on the language that introduces section 12's service of process provision, contending that the reference to serving process "in such cases" refers to cases under which the venue requirements of the section have already been satisfied. Go-Video argues in response that "such cases" are the cases encompassed by the first line of section 12, namely "[a]ny suit, action, or proceeding under the antitrust laws against a corporation." While the answer is certainly not apparent merely from an examination of the face of the statute, three factors support the conclusion that the latter construction is the proper one: it is more closely in keeping with the manner in which courts have traditionally defined the relationship between one statute's specific venue provision and the general federal venue statutes; it is more consistent with the legislative history and overall purpose of the Clayton Act; and it is better supported by precedent. We discuss each of these factors in turn.

A. Venue Statutes and the Antitrust Laws

Appellants' construction of Clayton Act Sec. 12 is at least partially premised on the

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notion that the enactment of its specific venue provision overrides the federal venue laws of general application. Leaving for Section B, infra, consideration of the question whether there is something unique in the language, structure, or legislative history of section 12 which justifies appellants' theory, we note that, as a general matter, courts have interpreted special venue provisions to supplement, rather than preempt, general venue statutes. See 15 Wright & Miller, Federal Practice and Procedure, Sec. 3818 at 108-109 (1976) ("Wright & Miller") ("Supreme Court has held that special venue statutes are supplemented by, and are to be read in light of, liberalizing provisions of the general venue statutes") (citing Pure Oil v. Suarez, 384 U.S. 202, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966)).

In Pure Oil, the Court ruled that venue for a seaman's Jones Act [46 U.S.C. App. Sec. 688] claim was proper under a general venue statute, 28 U.S.C. Sec. 1391(c), under which the defendant corporation could be sued in any district in which it transacted business, even though the Jones Act had its own venue provision, under which venue would have been proper only where the defendant resided or had its principal place of business. 384 U.S. at 207, 86 S.Ct. at 1397. The Court reasoned that the general venue statute was appropriate since it was "basically consistent with the purposes and language" of the Jones Act and ruled that it would hold a general venue provision inapplicable only if there was evidence that Congress intended the specific venue provision to be exclusive or intended venue to be restrictively applied under the statute at issue. 384 U.S. at 205-07, 86 S.Ct. at 1396-97. In reaching this result, the Pure Oil court was squarely within the dominant modern view that venue statutes are given liberal, rather than restrictive, interpretations unless specific evidence militates in favor of a contrary reading. See 4 Singer, Sutherland Stat. Const., Sec. 67.04 at 357 (4th ed.1986).

Cases dealing with claims under the antitrust laws have likewise taken the view that the general federal venue statutes coexist (although not necessarily coextensively) with the specific venue provisions contained in the various antitrust laws. Usually beginning with the long-settled proposition that venue questions in the antitrust realm are peculiarly fact-specific ones, see, e.g., United States v. Aluminum Co. of America, 20 F.Supp. 13, 16 (S.D.N.Y.1937), such cases have examined whether the facts a plaintiff has pleaded satisfy either a general, or a specific antitrust, venue statute. Delong Equipment Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 855 (11th Cir.1988) ("In a federal antitrust case, venue may be established under Sec. 4 of the Clayton Act, 15 U.S.C. Sec. 15, Sec. 12 of the Clayton Act, 15 U.S.C. Sec. 22, or the general federal venue statute, 28 U.S.C. Sec. 1391(b).") (footnote omitted); Ballard v. Blue Shield of Southern W.Va., Inc., 543 F.2d 1075, 1080 (4th Cir.1976) (15 U.S.C. Secs. 15, 22 "are not exclusive" for venue; venue can also be satisfied under 28 U.S.C. Sec. 1392(a)).

Although the Alien Venue Act was enacted separately from the rest of section 1391, its relationship to specific venue statutes is not materially different than that of the provisions already mentioned. See 1A Moore's Federal Practice, p 0.342 at 4170-71 (section 1391(d) "is a provision of general applicability[,] whether venue is governed by the general venue statute or by a special venue provision"). Indeed, if the relationship between the alien venue provision and specific venue statutes departs at all from that of specific venue...

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